•  POPULAR   GOVERNMENT 

An  Inquiry  into  the  Nature  and  Methods 
of  Representative  Government 

BY 

ARNOLD  BENNETT  HALL,  J.  D, 

of  the  Faculties  of 
Political  Science  and  Law 

of  the 

University  of  Wisconsin 


THE  MACMILLAN  COMPANY 
1921 

All  rights  reserved 


COPYRIGHT,  1921, 
By  THE  MACMILLAN  COMPANY. 

Set  up  and  elcctrotyped  Published  June,  1921. 


Printed  in  the  United  States  of  America. 


TO 
GRACE  CARNEY  HALL 


S045 


PREFACE 

AT  a  time  when  our  institutions  are  being  subjected  to 
criticism  and  contempt,  when  the  necessity  for  greater 
technical  efficiency  goes  hand  in  hand  with  the  increasing 
and  restless  demand  for  greater  popular  control,  and 
when  the  fundamental  theories  of  our  government  are 
menaced  by  a  national  myopia  of  political  vision  induced 
by  the  pressure  of  immediate  need,  an  analysis  of  the 
tested  principles  of  our  constitutional  system  seems  very 
opportune.  In  order  to  make  this  analysis  both  timely 
and  concrete,  the  discussion  is  centered  around  the  prac- 
tical political  problems  that  have  claimed  public  attention 
in  recent  years. 

The  attempt  here  is  to  inquire  into  the  inherent  nature 
of  popular  government  and  to  determine  its  fundamental 
limitations.  We  are  concerned  only  incidently  with  con- 
siderations of  form,  but  primarily  with  the  forces  of 
human  nature  as  they  function  through  the  forms  of  de- 
mocracy. How  must  they  function  if  they  function  effec- 
tively, and  if  popular  government  is  to  be  really  popu- 
lar? Are  there  any  fixed  and  inherent  limitations  upon 
the  exercise  of  popular  control  which  the  architects  of 
our  political  destiny  dare  not  ignore?  A  consideration 
of  these  and  similar  questions  should  afford  us  some 
basis  in  fundamental  principle  for  evaluating  the  modern 
tendencies  in  the  modification  of  our  system  of  repre- 
sentative government. 

In  his  able  and  practical  conception  of  public  opinion, 
President  Lowell  has  given  us  a  very  valuable  concept 
in  the  study  of  democracy  of  which  the  author  has  gladly 
and  freely  availed  himself,  and  which  forms  the  basis 
of  approach  in  the  present  volume.  The  author  has  no 


PREFACE 

new  contribution  to  offer,  but  hopes  that  the  analysis  and 
discussion  of  political  problems  in  the  light  of  the  funda- 
mental principles  involved  may,  perhaps,  help  to  give  a 
better  perspective  to  the  political  thinking  of  the  public 
and  to  translate  its  maturer  thoughts  into  a  coherent 
body  of  political  convictions. 

In  the  preparation  of  the  bibliography,  the  author  has 
received  indispensable  assistance  from  his  wife.  He  is 
also  under  great  obligation  to  his  colleague,  Mr.  Graham 
H.  Stuart,  for  reading  and  correcting  the  manuscript. 

ARNOLD  BENNETT  HALL. 
Madison,  Wisconsin, 
July  22,  1920, 


POPULAR   GOVERNMENT 

CHAPTER  I 

THE  NATURE  OF  POPULAR  GOVERNMENT 

POPULAR  government  is  a  practical  rather  than  a  philo- 
sophical concept.  Its  existence  is  not  determined  by  the 
application  of  political  dogmas,  the  constitutional  organ- 
ization and  distribution  of  its  powers,  or  the  qualifications 
of  its  electors.  Its  existence  depends  ultimately  upon  con- 
siderations that  are  more  permanent,  organic,  and  psycho- 
logical. In  the  last  analysis  and  for  all  practical  pur- 
poses, popular  government  is  that  form  of  political  or- 
ganization in  which  public  opinion  has  control.  And  this 
means  that  the  existence  of  public  opinion  is  the  prime 
requisite  of  popular  government.  A  country  may  be  ex- 
isting under  democratic  forms  of  government,  with  ade- 
quate machinery  for  the  registering  of  public  opinion,  and 
yet  there  be  an  utter  absence  of  political  democracy.  The 
constitution  of  Mexico  affords  ample  machinery  for  pop- 
ular expression,  and  yet  no  one  would  seriously  contend 
that  it  is  a  real  democracy,  for  there  is  no  public  opinion 
to  assume  control. 

The  identification  of  popular  government  with  the  ma- 
chinery of  popular  elections  has  been  an  all  too  common 
error.  Democracy  is  not  so  simple  as  the  legal  devices 
for  registering  majorities  or  counting  hands.  It  implies 
the  existence  of  those  nationalistic  and  psychical  traits 
that  make  possible  a  public  opinion  that  can  and  will  con- 
trol. The  electoral  devices  are  the  mere  form,  while 
public  opinion  is  the  substance  of  democracy. 

1 


POPULAR, -GOVERNMENT 


Where  the  machinery  of  democracy  has  been  installed 
among  peoples  or  over  areas  where  public  opinion  did 
not  exist,  there  have  followed  dictatorships,  oligarchies, 
and  despotisms  under  the  forms  of  democracy.  The 
experiences  of  some  of  the  turbulent  countries  in  the 
Caribbean,  operating  under  the  forms  of  constitutional 
democracy,  with  their  succession  of  obligarchs  and  dic- 
tators, bear  eloquent  testimony  to  this  fundamental 
truth.  The  reign  of  the  "carpetbaggers"  in  the  South, 
following  the  enfranchisement  of  the  negro,  in  some  cases 
obliterated  the  last  vestige  of  democracy.  It  was  not 
until  the  negro,  deprived  of  his  constitutional  right  of 
suffrage,  was  made  a  politically  subject  race,  and  the  con- 
trol of  government  returned  to  the  whites,  among  whom 
a  public  opinion  prevailed,  that  popular  government  was 
restored.  When  one  of  our  great  cities  has  fallen  tem- 
porarily into  the  hands  of  corrupt  and  vicious  bosses,  and 
true  democracy  has  seemed  to  disappear,  it  has  not  been 
due  to  the  failure  of  electoral  devices  to  register  cor- 
rectly the  votes  of  citizens,  but,  generally,  it  has  been  due 
to  a  conspicuous  lack  of  public  opinion.  The  city's  popu- 
lation has  frequently  been  composed  largely  of  immi- 
grants whose  traditions,  aspirations,  and  political  con- 
victions, inherited  from  different  and  alien  lands,  have 
lacked  that  unity  of  purposes  and  ideals  that  is  essential 
to  an  effective  public  opinion.  The  great  significance  to 
be  attached  to  the  work  of  Americanization  lies  just  here. 
Unless  the  great  mass  of  our  people  can  be  impregnated 
with  a  common  conviction  as  to  the  purposes  of  govern- 
ment and  the  fundamental  means  of  their  accomplish- 
ment, popular  government  is  imperiled.  During  the 
World  War,  the  great  menace  that  seemed  to  confront  us 
in  the  beginning  was  the  possibility  that  we  might  fail  to 
develop  a  public  opinion  behind  the  objects  and  purposes 


NATURE  OF  POPULAR  GOVERNMENT  3 

of  the  war,  and  that,  as  a  consequence,  our  nation  would 
divide  into  irreconcilable  groups,  none  of  which  could 
permanently  prevail. 

It  thus  becomes  clear  that  popular  government  cannot 
exist  without  public  opinion.  None  of  the  devices  of 
popular  control  can  secure  democracy,  unless  back  of  this 
machinery  there  is  a  public  opinion  that  functions  through 
it.  On  the  other  hand,  where  there  is  a  dominant,  virile 
public  opinion,  there  will  be  some  degree  of  popular  gov- 
ernment, though  the  electoral  devices  have  not  been  ade- 
quately provided.  The  British  Empire,  with  its  hereditary 
monarch  and  its  House  of  Lords,  is  nevertheless  a  demo- 
cratic government.  Nor  would  one  question  the  popular 
nature  of  the  government  of  Canada,  merely  because  the 
Governor  General  is  appointed  by  a  Prime  Minister  over- 
seas, and  its  senators  hold  office  for  life.  Despite  these 
factors,  public  opinion  has  worked  out  an  effective 
method  of  expression,  and  democracy  has  been  achieved. 

If  these  observations  are  correct,  public  opinion  be- 
comes the  basic  conception  of  democracy.  The  problems 
of  popular  government  can  be  approached,  therefore, 
only  through  the  analysis  and  understanding  of  this  im- 
portant concept.  Moreover  we  must  approach  it  from 
a  practical  rather  than  a  philosophical  point  of  view.  We 
are  concerned  only  with  that  public  opinion  which  forms 
the  basis  of  practical  democracy.  This  has  been  most 
ably  analyzed  by  President  Lowell,  who  found  the  first 
requisite  to  be  that  the  opinion  must  be  really  public. 
"Public  opinion  to  be  worthy  of  the  name,  to  be  the 
proper  motive  force  in  a  democracy,  must  be  really  pub- 
lic; and  popular  government  is  based  upon  the  assump- 
tion of  a  public  opinion  of  that  kind.  In  order  that  it 
may  be  public  a  majority  is  not  enough,  and  unanimity 
is  not  required,  but  the  opinion  must  be  such  that  while 


4  POPULAR  GOVERNMENT 

the  minority  may  not  share  it,  they  feel  bound,  by  con- 
viction not  by  fear,  to  accept  it;  and  if  democracy  is 
complete  the  submission  of  the  minority  must  be  given 
ungrudgingly."1 

The  distinction  between  public  opinion  and  popular 
majorities  has  been  too  rarely  kept  in  mind,  and  yet  it  is 
fundamental.  The  credulity  with  which  the  idea  of  self- 
determination,  as  the  means  of  solving  the  vexing  prob- 
lem of  subject  nationalities,  has  been  generally  received, 
is  significant.  It^would  be  easy  to  get  a  majority  vote 
among  the  people  of  Ireland,  for  or  against  Irish  inde- 
pendence, but  could  it  be  said  that  such  a  vote  solved  the 
problem,  when  the  minority  would  begin  civil  war  against 
the  execution  of  the  people's  mandate?  A  popular  ma- 
jority might  easily  have  been  secured  by  a  nation-wide 
referendum  just  before  the  Civil  War,  on  the  question  of 
the  extension  of  slavery  and  allied  issues,  but  would  any- 
one argue  that  such  a  decision  would  have  been  accepted 
by  the  losing  side?  Would  any  one  suppose  that  such  a 
vote  would  have  prevented  the  appeal  to  arms  to  settle 
a  problem  upon  which  a  national  public  opinion  did  not 
then  exist?  The  facts  are  that  the  American  people  had 
not  yet  developed  a  deep  conviction  as  to  the  unquestioned 
rights  of  the  majority  to  rule  in  regard  to  all  matters 
falling  within  the  constitutional  scope  of  their  powers, 
and,  therefore,  that  they  did  not  feel  bound  to  acquiesce. 
The  Civil  War  evidenced  the  temporary  breakdown  of 
popular  government  in  America,  due  to  the  absence  of  a 
genuine  public  opinion. 

The  distinction  between  mere  popular  majorities  and 
a  genuine  public  opinion,  in  which  the  minority  feels 
bound  to  acquiesce,  is  persuasively  stated  by  President 
Lowell.  "If  two  highwaymen  meet  a  belated  traveller 

^Public  Opinion  and  Popular  Government,  pp.  14-15. 


NATURE  OF  POPULAR  GOVERNMENT  5 

on  a  dark  road  and  propose  to  relieve  him  of  his  watch 
and  wallet,  it  would  clearly  be  an  abuse  of  terms  to  say 
that  in  the  assemblage  on  that  lonely  spot  there  was  a 
public  opinion  in  favor  of  a  redistribution  of  property. 
,Nor  would  it  make  any  difference,  for  this  purpose, 
whether  there  were  two  highwaymen  and  one  traveller, 
or  one  robber  and  two  victims.  The  absurdity  in  such  a 
case  of  speaking  about  the  duty  of  the  minority  to  submit 
to  the  verdict  of  public  opinion  is  self-evident;  and  it  is 
not  due  to  the  fact  that  the  three  men  on  the  road  form 
part  of  a  larger  community,  or  that  they  are  subject  to 
the  jurisdiction  of  a  common  government.  The  ex- 
pression would  be  quite  as  inappropriate  if  no  organized 
state  existed;  on  a  savage  island,  for  example,  where  two 
cannibals  were  greedy  to  devour  one  shipwrecked 
mariner.  In  short,  the  three  men  in  each  of  the  cases 
supposed  do  not  form  a  community  that  is  capable  of  a 
public  opinion  on  the  question  involved.  May  this  not 
be  equally  true  under  an  organized  government,  among 
people  that  are  for  certain  purposes  a  community?"1 

There  can  be  a  public  opinion,  therefore,  only  in 
those  communities  where  the  people  have  a  strong  sense 
of  national  unity,  based  upon  a  common  conviction  both 
as  to  the  legitimate  objects  of  government  and  the  proper 
means  of  their  attainment,  and  where  they  are  scrupu- 
lously careful  in  the  observance  of  such  convictions.  For 
it  is  only  under  these  conditions  that  the  minority  will 
give  ungrudging  obedience  to  the  dictates  of  the  major- 
ity. If  there  has  been  any  considerable  number  of  people 
in  Soviet  Russia  who  were  unwilling  to  render  obedience 
to  the  mandates  of  the  government,  except  as  com- 
pelled to  under  threat  of  force,  then  there  was  a  gov- 
ernment by  force  rather  than  by  public  opinion.  Nor 
fctt,  pp.  4,  5. 


6  POPULAR  GOVERNMENT 

would  it  make  any  difference  if  a  majority  voluntarily 
supported  Soviet  control;  it  would  still  be  a  government 
by  force.  It  would  not  be  a  democracy  in  the  sense  that 
it  was  a  government  by  all  the  people.  Such  could  not 
exist  until  there  was  such  a  spirit  of  national  unity  that 
the  minority  would  readily  accept  the  rule  of  the 
majority. 

The  second  essential  of  public  opinion,  according  to 
President  Lowell,  is  that  it  must  be  real  opinion,  as  dis- 
tinguished from  umere  prejudice  or  meaningless  impres- 
sion/* This  does  not  mean  that  a  blind  prejudice,  if 
widespread,  may  safely  be  ignored  in  politics,  for  it  can- 
not be.  It  must  be  reckoned  writh,  but  it  is  not  the  kind 
of  opinion  which  popular  government  is  intended  to  ex- 
press. On  the  other  hand,  a  belief  may  be  a  real  opin- 
ion, although  not  the  product  of  the  believer's  intellec- 
tual processes.  The  old  idea  that  man  is  a  wholly  ra- 
tional being,  ordering  his  life  by  intellectual  processes 
entirely,  has  long  since  disappeared.  Modern  psychol- 
ogy has  emphasized  what  a  small  part  the  individual's 
reason  plays  in  belief  and  action.  Convictions  are  more 
largely  the  product  of  suggestion  and  authority  than  of 
analysis  and  thought.  President  Lowell  illustrates  this 
by  reference  to  religious  beliefs.  "The  history  of  re- 
ligious bodies  shows  that  with  the  vast  majority  of  men 
creeds  are  inherited;  or,  to  speak  more  strictly,  accepted 
on  the  suggestion  and  authority  of  parents  and  teachers. 
It  is  incredible  that  if  every  one  really  thought  out  his 
beliefs  for  himself  religious  lines  would  remain  from 
generation  to  generation  so  little  changed  as  they  have, 
for  example,  among  the  Catholics  and  Protestants  in 
Switzerland  *  *  *  in  fact  it  would  be  safe  to  assert  as  a 
general  rule  that  the  members  of  every  church  have  ac- 
cepted its  dogmas  because  they  belonged  to  it,  quite  as 


NATURE  OF  POPULAR  GOVERNMENT  7 

much  as  they  have  clung  to  the  church  on  account  of  a  be- 
lief in  its  creed.  Nor  is  this  less  true  of  other  spheres  of 
thought.  It  is  manifestly  the  case  in  politics,  where  party 
affiliations  have  no  less  influence  in  fixing  the  principles  of 
men,  than  the  principles  have  in  determining  the  member- 
ship of  the  parties.'71 

Nevertheless,  President  Lowell  argues  convincingly, 
such  opinion  adopted  from  others  through  the  process  of 
suggestion  or  authority  may  be  real  opinion,  if  it  form 
an  integral  part  of  the  believer's  philosophy.  For,  as 
experimental  psychologists  have  shown,  man  cannot  gen- 
erally by  hypnotic  suggestion  be  made  to  adopt  an  idea 
inconsistent  with  his  own  character  and  convictions.  Con- 
versely they  are  especially  susceptible  to  opinions  and  be- 
liefs that  are  consonant  with  their  accepted  philosophies. 
Thus  the  American  public  opinion  against  polygamy  in 
Utah  was  not  the  result  of  a  rational  study  of  the  rela- 
tive merits  of  polygamy  and  monogamy,  but  was  rather 
due  to  the  consciousness  that  the  practice  of  polygamy  in 
Utah  was  antagonistic  to  the  fundamental  principles  of 
the  family  upon  which  the  whole  social  fabric  rested. 
Thus  uwhen  an  old  conviction  is  retained  or  a  new  one 
is  accepted,  on  account  of  its  consonance  with  a  code  of 
beliefs,  already  in  the  mind,  although  without  any  suffi- 
cient process  of  reasoning  or  knowledge  of  the  facts,  it 
may  be  regarded  as  an  opinion  in  a  very  different  sense 
from  an  impression  derived  from  authority  or  sugges- 
tion apart  from  any  such  connection  with  existing  ideas."2 

While  such  an  opinion  may  not  be  very  convincing  evi- 
dence as  to  the  truth  of  the  propositions  that  are  in- 
volved, it  is  nevertheless  real  opinion.  For  the  test  of 
what  constitutes  real  opinion  is  not  its  reliability  and  accu- 


frf.,  pp.  16,  17. 
'Ibid.,  p.  21. 


8  POPULAR  GOVERNMENT 

racy,  but  the  hold  it  has  upon  the  lives  and  thought  of 
the  people.  Does  it  afford  the  continuing  basis  of  a  uni- 
fied purpose  and  thought  that  will  constitute  the  cohesive 
unity  and  the  community  of  object  that  are  essential  to 
the  cooperative  process  that  we  call  democracy?  We  can 
have  popular  government  only  where  there  is  real  public 
opinion  to  guide  and  rule.  Unless  this  opinion  is  suffi- 
ciently grounded  in  the  convictions  and  consciousness  of 
the  people,  it  will  have  neither  the  continuity  essential  for 
effective  government,  nor  the  vitality  and  force  to  make 
itself  supreme.  Beliefs,  therefore,  that  arise  wholly  from 
the  conscious  acceptance  of  authority  or  the  unconscious 
process  of  suggestion  are  not  likely  to  be  real  opinion — 
that  is,  held  with  sufficient  firmness  and  conviction — unless 
such  beliefs  are  right  in  line  with  the  people's  own  estab- 
lished conceptions.  There  are  many  instances  in  Central 
America  where  dictators  have  aroused  tremendous  en- 
thusiasm in  behalf  of  democratic  government,  but  it  has 
rarely  continued  long  enough  to  establish  even  a  sem- 
blance of  democracy.  This  popular  manifestation  was 
not  real  opinion,  but  merely  a  popular  impression.  Cre- 
ated by  the  authority  and  contagious  personality  of  some 
dominant  figure,  there  was  no  basic  conviction  of  liberty, 
popular  government,  or  orderly  restraint  with  which  the 
popular  impression  might  establish  a  vital  contact.  There 
was  no  foundation  of  national  unity,  philosophy,  or  char- 
acter upon  which  an  enduring  structure  of  democracy 
could  be  erected. 

The  nature  of  public  opinion  is  well  illustrated  by 
American  opinion  in  regard  to  foreign  policy.  The  igno- 
rance of  our  people  regarding  world  politics  is  proverbial. 
We  have  taken  the  principle  of  isolation  with  such  cre- 
dulity and  in  such  seriousness,  that  even  the  experiences 
of  the  great  war  do  not  seem  to  have  shattered  it 
materially. 


NATURE  OF  POPULAR  GOVERNMENT  9 

We  have,  also,  as  a  result  of  authority,  suggestion,  and 
traditional  inheritance,  a  deep  and  abiding  conviction  as 
to  the  value  of  the  Monroe  Doctrine.  This  conviction 
is  none  the  less  firm  and  persistent  by  reason  of  the  fact 
that  a  great  majority  of  those  who  hold  it  could  not  pos- 
sibly define  the  meaning  and  implications  of  the  doctrine. 
As  a  consequence,  when  some  new  question  of  foreign 
policy  arises,  especially  in  connection  with  affairs  of  this 
hemisphere,  the  spokesmen  are  compelled  to  express  it  in 
terms  of  the  Monroe  Doctrine  if  they  desire  a  popular 
hearing  and  support.  This  is  necessary,  since  the  great 
majority  of  our  people  are  not  sufficiently  familiar  with 
the  facts  to  form  an  opinion  of  their  own.  The  mere 
authority  of  our  national  spokesmen  and  popular  leaders 
is  not  sufficient  to  create  a  real  opinion  behind  the  policy, 
unless  that  policy  can  be  harmonized  with  the  traditional 
doctrine  of  Monroe.  The  result  is  that  our  public  men 
have  brought  in  many  things  under  this  famous  doctrine 
that  have  no  logical  or  organic  relation  to  it.  Moreover, 
most  of  the  public  debate  on  new  problems  of  foreign 
policy  generally  turn  more  on  the  question  of  whether 
it  is  a  part  of  the  Monroe  Doctrine,  than  as  to  its  ulti- 
mate wisdom  and  justice,  although  it  is  conceivable  that 
the  two  may  not  be  the  same. 

When  the  idea  of  a  League  of  Nations  began  to  re- 
ceive popular  discussion,  immediately  after  the  armis- 
tice, there  was  created  a  popular  impression  in  its  favor 
that  seemed  destined  to  ripen  into  true  opinion,  because 
it  seemed  to  harmonize  with  the  firmly  established  con- 
viction of  the  American  people  that  war  is  a  wicked  and 
wasteful  institution,  in  the  continuation  of  which  we  had 
everything  to  lose  and  nothing  to  gain.  When  President 
Wilson  brought  home  the  proposed  covenant  of  the 
League  of  Nations,  had  the  idea  then  received  the  ap- 


10  POPULAR  GOVERNMENT 

proval  of  the  few  great  leaders  in  each  of  the  great  politi- 
cal parties,  as  a  feasible  scheme  for  diminishing  the 
chance  of  war,  and  one  which  either  did  not  interfere  with 
the  Monroe  Doctrine  or  which  secured  a  better  protection 
of  those  interests  guarded  by  that  doctrine,  a  public  opin- 
ion in  favor  of  the  covenant  would  have  been  created  that 
would  have  compelled  the  ratification  of  the  treaty.  For 
here  the  voice  of  authority,  harmonizing  with  the  convic- 
tions of  the  people,  would  have  produced  a  genuine  opin- 
ion that  would  ultimately  have  prevailed. 

But,  unfortunately  for  the  treaty,  it  was  the  opposite 
that  happened.  There  were  as  many  differing  opinions  as 
there  were  prominent  leaders  of  the  people.  They  ex- 
pressed varying  convictions  that  ranged  from  the  most 
hostile  opposition  to  the  treaty,  as  source  of  future  wars 
rather  than  a  guarantee  of  peace,  to  those  who  supported 
it  in  every  detail  as  the  only  means  of  safeguarding  Amer- 
ica's fundamental  interests.  Consequently  there  is  as  yet 
no  real  public  opinion  upon  the  covenant.  This  is  re- 
flected in  the  indecision,  the  futile  parliamentary  maneu- 
vers, and  the  almost  hopeless  impotence  of  the  Senate's 
attempt  to  grapple  with  the  problem.  There  seems  to  be 
a  strong  prevailing  opinion  that  some  form  of  interna- 
tional arrangement  should  be  effected  in  the  effort  to  safe- 
guard the  peace  of  the  future,  and  that  in  such  an  arrange- 
ment the  United  States  should  not  be  asked  to  abandon 
the  protection  of  the  Monroe  Doctrine.  But  as  to  whether 
the  proposed  covenant  accomplishes  this  task,  or  as  to 
what  reservations  or  changes  should  be  made,  there  seems 
to  be  an  absence  of  well-defined  opinion. 

This  does  not  mean,  however,  that  a  public  opinion  is 
impossible  on  this  particular  question.  It  merely  means 
that  when  there  is  no  dominant  and  accepted  authority 
from  which  one  can  get  one's  beliefs,  and  where  also  the 


NATURE  OF  POPULAR  GOVERNMENT         11 

relation  of  the  various  beliefs  to  the  citizen's  convictions 
is  not  clear,  no  opinion  can  be  formed  until  the  public  have 
gone  through  a  process  of  reasoning  and  have  acquired 
a  certain  number  of  material  facts.  This  process  requires 
time.  The  public  are  generally  agreed  as  to  the  desirabil- 
ity of  peace,  the  necessity  of  some  kind  of  international 
organization  to  secure  it,  and  the  fundamental  value  of 
the  Monroe  Doctrine  to  the  peace  and  security  of  the 
United  States.  The  problem  is  how  may  these  general 
principles,  upon  which  there  is  a  public  opinion,  be  applied 
in  this  particular  case?  Does  the  proposed  covenant  apply 
these  principles?  If  not,  what  are  the  means  by  which 
these  desired  ends  may  be  accomplished?  This  case  is  typi- 
cal of  a  vast  number  of  problems,  upon  which  a  public 
opinion  becomes  essential,  but  which,  in  the  words  of 
President  Lowell,  udo  not  present  a  question  of  harmony, 
with  accepted  principles,  but  the  application  of  an  ac- 
cepted principle  to  a  particular  case,  or  the  means  to  be 
adopted  in  attaining  an  end  universally  desired;  and  these 
things  usually  require  for  their  determination  a  consider- 
able knowledge  of  the  subject  matter.  In  short,  the  ques- 
tion turns  not  on  the  abstract  fitness  of  things,  but  mainly 
on  the  verification  of  facts,  and  in  doubtful  cases  on  ascer- 
taining facts  neither  on  the  one  hand  self-evident  nor  on 
the  other  improbable."1 

A  real  opinion  cannot  be  formed  on  this  complicated 
issue,  therefore,  until  the  public  have  had  time  to  do 
some  thinking  and  to  inform  themselves  farther  on  the 
facts.  They  must  come  to  some  conclusion  as  to  the  rela- 
tion of  the  covenant  to  the  essential  principles  of  the 
Monroe  Doctrine.  They  must  get  some  idea  as  to  the 
international  machinery  that  the  covenant  will  establish, 
and  as  to  its  probable  effectiveness.  They  must  gain  some 
Vbid.f  p.  22. 


12  POPULAR  GOVERNMENT 

conception  of  the  general  nature  of  European  politics,  of 
the  idea  of  economic  imperialism,  of  the  history  of  recent 
efforts  and  achievements  in  the  solution  of  international 
controversies  by  arbitration,  inquiry,  and  conference. 
They  must  know  something  of  the  great  European  con- 
ferences of  the  past,  in  which  conflicting  national  interests 
have  been  adjusted,  as  a  basis  of  estimating  the  feasibility 
of  the  proposed  function  of  the  executive  council.  They 
must  know  something  of  the  liabilities  that  America  as- 
sumes by  becoming  a  party  to  the  league.  They  must  gain 
some  conception  of  the  extent  to  which  America  has  a 
vital  interest  in  the  peace  of  the  world,  in  order  to  come 
to  some  conclusion  as  to  whether  the  benefits  received  will 
compensate  for  the  liabilities  assumed. 

These  are  some  of  the  questions  which  must  be  met. 
This  does  not  mean  that  all  of  them  will  be  decided  inde- 
pendently. Very  few  persons  will  have  the  sustained  in- 
terest or  the  historic  background  to  follow  out  each  of 
the  questions  suggested  to  an  independent  conclusion. 
Many  will  accept  the  opinion  of  their  favorite  historian, 
public  leader,  journal,  newspaper,  or  their  best  informed 
friends  on  some  of  the  aspects  of  the  problem.  From  a 
more  or  less  careful  analysis  and  comparison  of  the  con- 
clusions, facts,  and  opinions  thus  assembled,  they  will  ar- 
rive at  some  opinion  of  their  own.  And  this  will  be  real 
opinion  by  the  very  reason  that  it  is,  partially  at  least,  a 
product  of  their  own  intellectual  life.  By  the  process  of 
thought  thus  involved,  the  conclusion  reached  will  tend 
to  become  a  part  of  one's  intellectual  equipment,  and  to 
deepen  into  convictions  of  such  strength  and  permanence, 
that  it  will  become  real  opinion,  as  distinguished  from  a 
merely  passing  impression, 

How  mere  impressions,  derived  from  authority  or  sug- 
gestion, may  ripen  into  conviction  through  the  process  of 


NATURE  OF  POPULAR  GOVERNMENT         13 

thought  is  capable  of  abundant  illustration.  Very  fre- 
quently a  lawyer,  who,  upon  the  initial  investigation  of  his 
client's  claim,  has  considerable  doubt  as  to  its  validity, 
loses  that  doubt  and  acquires  a  definite  conviction  as  he 
develops  his  argument  and  builds  his  case.  The  client's 
point  of  view  is  reduced  to  terms  of  his  own  intellectual 
activity,  he  acquires  an  unconscious  bias  in  its  favor,  and 
his  honest  doubt  gives  way  to  honest  and  even  passionate 
conviction.  Were  he  retained  on  the  opposing  side,  he 
would  reach  just  as  clear  a  conviction,  but  to  the  opposite 
effect.  Most  of  us  can  recall  how  some  of  our  convictions 
that  we  hold  today  originated  in  some  debate,  or  special 
paper  or  report,  prepared  in  high  school  or  in  college, 
and  which  we  have  had  no  occasion  to  reexamine  since. 
The  mere  process  of  thinking  it  out  changed  our  impres- 
sions into  opinions  that  still  prevail. 

The  efficiency  of  the  process  of  reasoning  in  the  devel- 
opment of  conviction  is  well  understood  by  those  whose 
business  it  is  to  develop  public  opinion.  Those  religious 
faiths  which  depend  upon  authority  for  their  support,  and 
which,  therefore,  find  it  essential  to  establish  religious 
education  among  their  young,  have  found  the  catechism  a 
very  valuable  device.  It  gives  the  youth  a  process  of 
reasoning  in  favor  of  the  established  creed  which  tends 
to  deepen  his  convictions.  It  may  be  that  the  reasoning 
proceeds  upon  premises  that  are  not  scientifically  sound, 
but  if  sufficiently  plausible  to  harmonize  with  inherited 
prejudice,  the  believer's  convictions  gain  immeasurably 
by  the  process.  This  is  recognized  by  shrewd  political 
managers,  who  desire  to  strengthen  their  party  member- 
ship against  the  dangers  of  political  heresy.  They  seek 
to  establish  plausible  premises  and  significant  facts,  upon 
which  to  build  an  affective  argument  as  to  the  superiority 
of  the  party  or  principle  they  represent.  Frequently  this 


14  POPULAR  GOVERNMENT 

is  intended  more  to  strengthen  their  own  members  than 
to  win  converts  from  the  opposition.  They  realize  that  if 
they  can  lead  their  followers  through  a  process  of  rea- 
soning to  the  desired  conclusion,  party  fidelity  will  be 
tremendously  increased,  even  though  the  premises  be 
false  and  the  figures  misleading. 

The  successful  advertising  writer  employs  the  same 
psychology.  He  uses  "reason  why  copy/'  He  seeks  to 
"sell"  the  reader  by  supplying  him  with  a  reasoned  argu- 
ment leading  to  the  desired  conclusion.  If  he  can  interest 
the  reader  to  follow  him,  and  the  reasoning  be  plausible, 
he  generally  succeeds. 

If  a  general  belief  is  created  only  by  suggestion  or  au- 
thority, and  is  not  augmented  by  harmonizing  with  popu- 
lar conviction,  or  by  a  reasoned  process  of  thought,  it  is 
not,  for  practical  purposes,  a  real  opinion.  It  may  be  of 
temporary  political  importance,  but  it  will  lack  the 
strength  and  permanence  to  make  it  a  controlling  factor 
in  an  efficient  democracy.  For  democracy,  to  be  efficient, 
must  have  a  continuity  of  purpose  and  a  stability  of  ideals. 
The  popular  belief  in  favor  of  the  recall  of  judges  and 
judicial  decisions  in  the  campaign  of  1912  is  an  excellent 
example  of  a  popular  impression  as  distinct  from  public 
opinion.  The  belief  was  largely  a  result  of  authority. 
Such  popular  leaders  as  Colonel  Roosevelt,  Senator  La- 
Follette  and  Mr.  Bryan  created  almost  a  popular  furore 
in  its  behalf.  In  less  than  two  years  it  was  politically 
dead.  Surely  such  a  fickle  sentiment  would  not  be  a  safe 
guide  for  a  great  democracy  amidst  the  profoundly  dis- 
turbing problems  of  to-day.  It  should  be  observed  that 
the  issue,  while  sponsored  by  good  political  authority,  did 
not  lie  full  square  with  popular  conviction,  and  was  not 
urged  upon  public  attention  for  a  sufficient  length  of  time 
to  enable  the  public  to  arrive  at  personal  conclusions.  It 


NATURE  OF  POPULAR  GOVERNMENT         15 

is  true  that  the  advocates  of  the  recall  tried  to  create  a 
close  and  necessary  harmony  between  the  proposed  re- 
form and  the  established  convictions  in  favor  of  popular 
control.  But  this  was  unsuccessful,  since,  at  the  same  time, 
it  equally  antagonized  a  popular  conviction  regarding  the 
separation  of  the  courts  from  politics.  It  was  not,  there- 
fore, a  real  opinion. 

It  is  evident,  from  the  examination  of  the  nature  of 
public  opinion,  that  there  are  certain  factors  and  condi- 
tions necessary  for  its  existence.  We  have  already  noted 
that  in  certain  Central  American  democracies  a  public 
opinion  is  not  possible,  and  that  democracy  is  immediately 
supplanted  by  despots,  dictators,  or  obligarchs.  It  was  this 
fundamental  ideal  that  Mill  had  in  mind  when  he  de- 
clared that  nationality  was  an  essential  to  representative 
government.  It  becomes  important,  therefore,  to  con- 
sider what  are  the  conditions  essential  to  public  opinion. 
There  are  two  conditions  that  seem  to  be  absolutely  indis- 
pensable. 

The  first  and  the  most  obvious  one  is  a  homogeneous 
population,  frequently  identified  with  the  idea  of  national- 
ity. According  to  Mill  uthis  feeling  of  nationality  may 
have  been  generated  by  various  causes.  Sometimes  it  is 
the  effect  of  identity  of  race  and  descent.  Community  of 
language  and  community  of  religion  greatly  contribute 
to  it.  Geographical  limits  are  one  of  its  causes.  But  the 
strongest  of  all  is  identity  of  political  antecedents;  the 
possession  of  a  national  history,  and  consequent  com- 
munity of  recollections;  collective  pride  and  humiliation, 
pleasure  and  regret,  connected  with  the  same  incidents 
in  the  past."1  Unless  this  feeling  exists,  it  is  improbable 
that  the  minority  will  always  be  ready  and  willing  to 
acquiesce  in  the  opinion  of  the  majority.  The  presence 
1  Representative  Government,  Chap.  XVI. 


16  POPULAR  GOVERNMENT 

of  antagonistic  races  may  thus  prevent  the  existence 
of  opinion  that  is  really  public.  Illustrations  are  af- 
forded by  the  negro  population  in  the  Southern  states 
during  the  rule  of  the  carpetbaggers,  the  French 
population  of  Alsace-Lorraine  under  German  domin- 
ion, or  the  struggling,  contentious  races  represented 
in  the  population  of  Austria-Hungary.  Deep  lines  of  re- 
ligious and  economic  cleavage  may  so  divide  the  people 
as  to  prevent  popular  opinions  from  being  truly  public 
as  in  the  case  of  the  Nationalists  and  the  Unionists  of 
Ireland.  The  importance  of  these  factors  increases,  rather 
than  diminishes,  as  the  suffrage  is  extended  to  those  lower 
in  the  intellectual  and  cultural  scale,  for  as  President 
Lowell  has  observed,  "religious  intolerance  and  racial 
antipathy,  the  horror  of  the  man  with  an  unfamiliar  form 
of  worship,  the  instinctive  dislike  of  the  man  who  speaks 
a  different  tongue  or  pronounces  his  words  in  a  strange 
way,  usually  increase  as  one  descends  in  the  social  scale. 
The  result  is  that  deep-seated  divergencies  of  this  kind 
not  only  unfit  a  country  for  popular  government,  but  an 
attempt  to  introduce  it  tends  to  magnify  them.  The  strife 
of  races  has  increased  in  the  Austrian  Empire  with  the 
growth  of  representative  assemblies,  and  the  Irish  de- 
mand for  Home  Rule  became  louder  with  each  extension 
of  the  suffrage."1 

The  second  essential  to  the  existence  of  public  opinion 
is  a  community  of  basic  political  convictions,  and  a  na- 
tional unity  of  fundamental  ideals,  purposes,  and  objects. 
Groups  may  differ  as  to  details,  but  if  their  fundamental 
purposes  and  convictions  are  in  conflict,  there  is  little 
opinion  that  is  really  public.  For  instance,  in  France  the 
monarchists  are  in  direct  conflict  with  the  rest  of  the  pub- 
lic on  the  fundamental  question  of  popular  government. 
1  Public  Opinion  and  Popular  Government,  p.  36. 


NATURE  OF  POPULAR  GOVERNMENT         17 

and  while  the  monarchists  may  not  rise  in  revolt,  they  do 
not  accept  the  popular  verdict  in  favor  of  democracy  as 
final  or  binding.  This  prevents  the  adequate  development 
of  a  true  public  opinion  and  weakens  proportionately  the 
democracy  of  France.  If  a  democracy  is  to  succeed,  it 
would  seem  essential  that  the  people  should  hold  certain 
fundamental  convictions  in  common,  such  as  a  profound 
belief  in  and  devotion  to  the  principle  of  liberty  through 
law,  and  its  coordinate  concepts  of  toleration  and  self-re- 
straint. They  should  have  a  common  and  firm  belief  in 
lawful  evolution  and  against  revolution  as  an  efficient 
means  of  progress.  They  should  share  a  common  convic- 
tion as  to  what  constitutes  due  process  of  law  or  the 
proper  methods  and  occasions  for  governmental  inter- 
ference with  individual  rights.  Since  most  of  our  public 
opinion  is  created  by  authority,  conforming  to  the  basic 
philosophy  or  convictions  of  the  people,  the  importance 
of  a  community  of  fundamental  conviction  seems  obvious. 
It  is  generally  assumed  that  in  America  these  convic- 
tions are  commonly  and  uniformly  held.  While  there  is 
every  evidence  to  believe  that  our  people  cling  tenaciously 
to  these  concepts,  when  threatened  by  alien  foes,  they  are 
not  such  an  inherent  part  of  our  beliefs  as  always  to  pre- 
vail in  domestic  life.  A  people  that  will  tolerate  mob 
violence,  accompanied  by  incredible  barbarity,  particu- 
larly when  directed  against  the  negro  race,  with  apparent 
calm  and  indifference,  cannot  be  said  to  be  vitally  de- 
voted to  the  idea  of  individual  right  and  liberty.  The 
invidious  discrimination  against  this  race,  both  in  legisla- 
tion and  administration,  shows  a  popular  disregard  of  the 
liberty  and  rights  of  others.  It  increases  rather  than  di- 
minishes racial  antipathy.  The  public  opinion  that  ap- 
proves and  secures  these  measures  is  not  truly  public,  for 
the  negro  accepts  them  only  under  compulsion  of  force.  In 


18  POPULAR  GOVERNMENT 

the  meantime  it  is  creating  a  group  of  irreconcilables  and 
to  that  extent  prevents  our  government  from  being  really 
democratic.  The  recent  race  riots  demonstrate  the  domes- 
tic dangers  that  inhere  in  the  existence  of  such  groups. 
When  Mr.  Victor  Berger  conducted  his  canvass  for  re- 
election to  Congress,  after  having  been  refused  his  seat 
because  he  stood  convicted  of  illegal  conduct,  pending 
an  appeal,  it  is  significant  that  his  campaign,  which  was 
permeated  with  a  spirit  of  hatred  and  resistance  to  our 
institutions,  aroused  the  enthusiastic  response  of  the  col- 
ored race. 

America  is  divided  into  many  religious  groups  and 
faiths,  and  yet  such  lines  of  cleavage  have  rarely  inter- 
fered with  the  forces  of  public  opinion,  for  the  sole  reason 
that  as  a  people  we  are  more  firmly  grounded  in  reli- 
gious liberty  and  toleration  than  we  are  in  narrow  secta- 
rianism and  religious  bigotry.  But  who  would  doubt  that, 
should  we  lose  sight  of  that  fundamental  conviction  as 
a  people,  and  a  majority  interfere  with  the  religious  lib- 
erty of  the  minority,  we  would  at  once  have  a  group  of 
irreconcilables  that  would  refuse  to  acquiesce  or  who 
might  resist  with  force.  Innumerable  illustrations  might 
be  cited  to  show  that  the  success  of  American  democracy, 
operating  over  so  large  a  territory,  with  so  many  differ- 
ences in  temperaments  and  beliefs,  is  only  possible  so 
long  as  underneath  these  differences  there  is  a  basic 
unity  as  to  fundamentals. 

The  value  of  such  unity  Professor  Cooley  finds  illus- 
trated in  our  urban  centers.  "It  is  a  chief  factor  in  the 
misgovernment  of  our  cities  that  they  are  mostly  too 
new  and  heterogeneous  to  have  an  established  conscious- 
ness. As  soon  as  the  people  feel  their  unity,  we  may  hope- 
fully look  for  civic  virtue  and  devotion,  because  these 
things  require  a  social  medium  in  which  to  work.  A  man 


NATURE  OF  POPULAR  GOVERNMENT         19 

will  not  devote  himself,  ordinarily,  where  there  is  no  dis- 
tinct and  human  whole  to  devote  himself  to,  no  mind  in 
which  his  devotion  will  be  recognized  and  valued.  But  to 
a  vital  and  enduring  group  devotion  is  natural,  and  we 
may  expect  that  a  self-conscious  city,  state,  university,  or 
profession  will  prove  to  be  a  theatre  of  the  magnanimous 
virtues."1 

Closely  related  to  this  subject,  because  adopted  to  pre- 
serve the  fundamental  concepts  which  represent  the  ma- 
ture deliberation  of  the  people  against  hasty  and  ill-con- 
sidered action,  is  the  doctrine  of  constitutional  restraints. 
This  subject  will  receive  fuller  discussion  later,  but  its 
relation  to  public  opinion  is  so  important  that  it  should  be 
noted  here.  While  the  American  people  agree  in  their 
general  political  convictions,  yet  under  the  pressure  of 
racial  prejudice,  or  inflamed  passion,  they  frequently  are 
tempted  to  disregard  these  principles  in  specific  instances. 
Since  such  disregard,  though  limited  to  specific  cases, 
tends  to  develop  irreconcilables  and  undermine  public 
opinion,  it  is  of  the  utmost  importance  that  such  lapses 
should  not  occur.  Consequently  we  have  placed  these 
fundamental  concepts  into  our  constitutions,  provided 
that  any  legislative  or  administrative  action  that  violates 
them  shall  be  void,  and  have  confided  the  enforcement  of 
such  provisions  to  an  independent  judiciary,  which  is 
reasonably  free  from  immediate  popular  control. 

Among  the  ideas  thus  embodied  in  our  fundamental 
law  are  the  guarantees  against  taking  life,  liberty,  or 
property  without  due  process  of  law,  and  the  guarantees 
of  religious  freedom,  and  of  the  liberty  of  speech,  press, 
and  assembly.  These  latter  guarantees  are  of  particular 
importance  to  public  opinion.  In  times  of  stress  and 
strain,  when  majorities  are  tempted  to  impose  upon  the 
^Social  Organization,  p.  134. 


20  POPULAR  GOVERNMENT 

rights  of  the  minority,  there  is  always  the  temptation  to 
cut  off  the  freedom  of  expressing  dissent.  This  right  of 
the  minority  to  express  dissent  and  to  enjoy  the  freedom 
of  discussion  has  been  called  the  safety  valve  of  democ- 
racy. It  gives  to  the  minority  the  feeling  that  its  point 
of  view  has  had  its  day  in  court,  it  gives  to  the  mandate 
of  the  majority  the  appearance  of  justice  rather  than  of 
arbitrary  power,  and  tempers  the  discussion  of  the  ma- 
jority with  the  criticism  and  viewpoint  of  the  minority. 
Opinions  formed  by  the  people  under  such  conditions  are 
infinitely  more  acceptable  to  the  members  of  the  minority, 
and  therefore  more  readily  secure  voluntary  acquiescence, 
than  if  arbitrarily  formed  without  the  freedom  of  dissent. 
Nothing  would  create  groups  of  irreconcilables  among 
a  spirited  people  more  quickly  than  a  denial  of  this  funda- 
mental right.  The  doctrine  of  constitutional  restraint, 
implies,  therefore,  that  the  minority  consider  themselves 
bound  by  the  majority  only  so  far  as  they  act  within  the 
limits  of  their  constitutional  power.  Our  people,  for  in- 
stance, in  normal  matters  of  national  policy,  consider 
themselves  bound  by  the  acts  of  the  constitutional  major- 
ity, when  they  would  not  consider  themselves  so  bound  if 
the  majority  invaded  their  constitutional  rights  of  reli- 
gious liberty.  It  is  thus  that  the  fundamental  concepts 
of  the  people  are  protected  against  hasty  or  ill-consid- 
ered abuse  by  a  temporary  majority.  In  a  country  rep- 
resenting as  many  races,  interests,  and  creeds  as  America, 
such  restraints  would  seem  essential  to  the  success  of 
democratic  government. 

We  come  now  to  the  reliability  or  trustworthiness  of 
public  opinion  as  a  means  of  controlling  political  affairs, 
As  already  noticed,  popular  belief  need  not  be  accurate 
in  order  to  be  real  opinion,  and  control  by  public  opin- 
ion does  not,  therefore,  guarantee  either  the  justice  or 


NATURE  OF  POPULAR  GOVERNMENT         21 

accuracy  of  the  control.  In  some  of  the  Southern  states 
before  the  middle  of  the  last  century,  there  can  be  no 
doubt  that  there  was  a  very  real  public  opinion  in  favor 
of  slavery,  and  yet  no  one  would  argue  that  such  an  opin- 
ion, determined  the  question  of  the  wisdom  or  justice  of 
that  institution.  The  most  that  any  careful  student  of 
politics  would  contend  for  in  behalf  of  democracy  would 
be  that  in  a  country  where  the  conditions  essential  to 
public  opinion  obtained,  a  popular  government  would 
have  certain  elements  of  strength  and  stability,  and  a  defi- 
nite tendency  to  realize  the  aspirations  and  convictions 
of  the  people,  that  would  be  lacking  under  other  forms 
of  government.  And  this  is  doubtless  ample  justification 
for  a  democracy  in  a  country  such  as  ours. 

However,  we  are  not  primarily  concerned  here  with 
the  justification  of  democracy.  Our  present  discussion  is 
based  upon  the  assumption  that  in  America  the  question 
of  democracy  is  no  longer  open  to  serious  debate.  "Shall 
the  people  rule"  is  never  a  real  issue  in  American  politics, 
despite  the  fervid  utterances  of  demagogues  and  politi- 
cians. "How  should  the  people  rule,  in  order  to  rule  the 
most  effectively?"  is,  however,  a  very  vital  question.  It 
is  this  fundamental  problem  that  we  shall  discuss  prima- 
rily in  the  chapters  that  are  to  follow. 

We  have  found  that  popular  government  is  one  in 
which  public  opinion  has  control.  There  can  be  no  popu- 
lar government,  therefore,  unless  there  be  a  public  opin- 
ion that  has  sufficient  permanence  and  vitality  to  rule* 
Public  opinion,  to  be  effective  in  political  control,  must  be 
really  public;  that  is,  one  in  which  the  minority,  though 
they  disagree,  nevertheless  feel  they  ought  freely  to  ac- 
quiesce. It  must  also  be  real  opinion,  one  that  has  a  firm 
grip  upon  the  lives  and  thoughts  of  the  people.  If  ac- 
cepted merely  upon  authority  or  by  suggestion,  it  should 


22  POPULAR  GOVERNMENT 

harmonize  with  their  established  creeds.  Otherwise  it 
should  be  a  partial  product  of  their  own  reason  and  ex- 
perience, in  order  that  it  may  have  both  permanence  and 
force.  Such  opinion  cannot  exist  except  among  a  homo- 
geneous people,  united  by  a  harmony  of  basic  convictions 
as  to  the  rights,  methods,  and  purposes  of  democracy.  In 
such  a  government,  two  fundamental  questions  present 
themselves.  The  first  is  how  may  the  accuracy  and  relia- 
bility of  public  opinion  be  improved?  This  question  will 
receive  brief  consideration  in  the  next  chapter.  The  sec- 
ond is  the  one  above  suggested,  of  how  must  public  opin- 
ion rule  in  order  to  rule  the  best?  This  is  a  question  with 
which  this  volume  is  primarily  concerned.  It  deals  with 
the  methods  and  ways  in  which  public  opinion  may  be  the 
most  wisely  and  faithfully  translated  into  the  accom- 
plished facts  of  legislation  and  administration.  It  is 
through  the  study  of  these  two  processes  particularly 
that  popular  government  may  hope  to  achieve,  in  a  rea- 
sonable degree,  both  efficiency  and  democracy. 


SUGGESTIVE  QUESTIONS  FOR 

CHAPTER  I 

I.  In  discussing  political  abuses  in  American  poli- 
tics, some  one  has  suggested  that  the  remedy  for  the  evils 
of  democracy  is  more  democracy.  Discuss  and  criticize 
this  proposition. 

|),  Would  a  referendum  vote  on  the  question  of 
the  abolition  of  religious  liberty  register  a  true  public 
opinion  ? 

^  (fill  Would  a  plebiscite  on  the  question  of  Irish  in- 
dependence be  a  solution  in  accordance  with  the  concep- 
tioa~of  popular  government. 

*1  yV)  A  proposed  initiative  and  referendum  amend- 
ment in  Ohio  provided  that  the  initiative  and  referendum 
should  never  be  used  as  a  means  of  adopting  the  single 
tax.  Was  this  exception  consistent  with  the  principles 
of  popular  government? 

"7  (V/  When  the  Southern  states  desires  to  secede  from 
the  Union  and  the  United  States  prevented  them  by 
force  of  arms,  was  that  a  violation  of  the  modern  doc- 
trinjuof  self-determination? 

(Vp  Would  home  rule  for  Ireland  violate  the  prin- 
ciples of  self-determination  or  the  theory  of  popular  gov- 
ernment so  far  as  Ulster  is  concerned? 

(VlP  In  determining  whether  the  Russian  people 
should  be  organized  into  a  national  empire,  or  divided 
into  a  number  of  independent  states,  would  a  plebiscite, 
taken  over  the  entire  empire,  afford  a  rational  solution  ? 

VIII.    Suppose  in  the  preceding  case  that  the  majority 
f  the  people  of  the  entire  empire  had  voted  against 

23 


24  POPULAR  GOVERNMENT 

division  but  the  people  of  one  province  had  voted  in  favor 
of  division.  What  would  be  the  proper  solution? 

IX.  Some  one  has  declared  that  there  never  would  be 
popular  government  in  America  until  woman's  suffrage 
is  adopted.  Give  a  critical  discussion  of  this  statement. 

(&  Discuss  critically  the  following  statement:  "We 
shall  never  enjoy  true  popular  government  in  America 
until  we  free  the  people  and  their  legislatures  from  the 
tyranny  of  constitutional  restraints," 


CHAPTER  II 

THE  IMPROVEMENT  OF  PUBLIC  OPINION 

"SANGUINE  enthusiasts  for  democracy  are  inclined  not 
only  to  regard  it  as  a  panacea  for  all  ills,  but  also  to  be- 
lieve that  it  possesses  an  infallible  power  to  create  the 
conditions  needed  for  its  own  successful  operation.  They 
are  apt  to  urge,  as  the  first  step  in  a  country  hitherto 
despotically  ruled,  the  creation  of  a  popular  representa- 
tive assembly,  assuming  that  practice  in  the  art  of  self- 
government  will  rapidly  develop  the  qualities  essential 
for  a  genuine  public  opinion.  But  to  throw  a  child  sud- 
denly into  deep  water  and  expect  him  to  teach  himself 
to  keep  afloat  is  as  irrational  as  to  forbid  him  to  enter 
the  water  until  he  has  learned  to  swim.  Preparation  and 
practice  must  go  on  together  gradually;  and  the  prepara- 
tion consists  largely  in  the  growth  of  political  homoge- 
neity and  of  the  interchange  of  ideas.  England  was  pre- 
pared for  self-government  by  the  Norman  and  Angevin 
kings  who  forced  upon  the  people  a  common  nationality 
and  a  common  law,  while  the  habit  of  discussing  public 
affairs  was  well  established  long  before  Parliament  ac- 
quired supremacy.  Even  in  a  highly  advanced  state  of 
civilization  a  representative  assembly,  set  up  before  the 
community  isTcapable  of  a  real  public  opinion,  is  liable, 
if  not  a  mere  sham,  to  result  for  a  time  in  the  oppressive 
rule  of  a  class — as  happened  in  Prussia  for  the  dozen 
years  after  the  convulsions  of  1848 — or  to  develop  cor- 
ruption, such  as  was  used  to  work  the  parliamentary  form 
of  government  in  France  under  Louis  Philippe."1 
1Lowell,  Public  Opinion  and  Popular  Government,  p.  38. 

25" 


26  POPULAR  GOVERNMENT 

This  sound  observation  of  President  Lowell  has  been 
too  frequently  ignored  by  the  politicians,  reformers,  and 
citizens  of  America.  uThe  remedy  for  the  evils  of  democ- 
racy is  more  democracy"  has  too  frequently  been  accepted 
as  a  self-evident  proposition.  Yet  the  very  people  whose 
slavish  credulity  is  imposed  upon  by  the  unscrupulous 
demagogue,  know  full  well,  if  they  would  only  think,  that 
the  remedy  for  the  evils  of  democracy  during  "carpet- 
bag" days  in  the  South,  in  Mexico,  and  in  certain  of  the 
Central  American  countries  for  a  century,  and  in  some 
of  the  large  cities  of  our  land  to-day,  was  not  to  be  found 
in  the  instrumentalities  of  popular  control,  nor  in  the 
devious  devices  of  democracy — for  these  they  had — but 
only  in  the  development  of  a  public  opinion  that  is  compe- 
tent to  rule.  The  New  South  could  be  erected  upon  the 
ruins  of  the  Old  only  when  the  negro  was  deprived  of 
his  right  of  franchise  and  democracy  was  decreased 
rather  than  increased.  No  one  would  seriously  contend 
that  real  popular  government  would  supplant  the  rule  of 
dictators  and  despots  in  Haiti  or  San  Domingo  through 
the  establishment  of  the  referendum,  the  recall,  or  the  di- 
rect primary.  No  one  would  argue  that  the  notorious 
first  ward  of  Chicago  would  be  cleansed  of  its  political 
corruption  by  all  the  electoral  machinery  that  political  re- 
formers could  devise. 

And  yet  when  we  have  felt  the  pressure  of  political 
problems  and  the  need  of  effective  action,  we  have  too 
frequently  inclined  to  the  leadership  of  the  demagogue, 
with  his  rhythmic  sophistries  that  appealed  to  our  na- 
tional sense  of  self-complacency  and  lulled  us  to  a  false 
sense  of  security,  and  rejected  the  sterner  challenge  of 
the  statesman  to  grapple  with  the  fundamental  problems 
of  civic  efficiency.  We  have  had  a  mythical  confidence  in 
the  automatic  efficiency  of  democracy.  With  the  succes- 


IMPROVEMENT  OF  PUBLIC  OPINION          27 

sive  adoption  of  each  political  panacea,  the  public  has 
sighed  with  relief  and  settled  back  to  await  the  early 
coming  of  the  millennium. 

There  are  three  fundamental  considerations  that 
make  it  imperative  to  abandon  this  complacent  atti- 
tude, and  to  undertake  a  constructive  program  for  the 
improvement  of  public  opinion.  The  first  consideration 
is  the  rapidly  growing  complexity  of  modern  problems. 
It  may  have  been  that  the  American  people  were  compe- 
tent to  form  a  reliable  opinion  upon  most  of  the  public 
questions  that  confronted  them  a  century  ago,  but  that 
is  no  evidence  that  the  same  is  true  to-day.  Life  then  was 
relatively  simple.  There  were  few  professions  and  they 
were  not  very  far  advanced.  The  specialization  of  knowl- 
edge was  in  its  infancy.  There  were  few  problems  that 
confronted  the  public  that  required  expert  opinion  then, 
whereas  to-day  there  are  very  few  that  do  not.  Then 
almost  any  intelligent  voter  on  a  school  board  could  pass 
with  reasonable  intelligence  upon  the  problems  that  con- 
fronted them,  of  whether  the  teacher  was  competent  to 
teach  the  elementary  branches,  and  whether  the  little 
red  school  building  was  adequate  and  satisfactory.  But 
to-day,  the  most  intelligent  member  of  the  city  school 
board  would  scarcely  dare  to  pass  upon  the  architectural 
features,  the  most  suitable  equipment,  the  qualification 
of  the  various  teachers  for  the  various  lines  of  instruc- 
tion, the  best  organization  of  the  curriculum,  etc.,  with- 
out the  aid  and  counsel  of  many  different  experts.  The 
question  of  public  health,  the  regulation  of  public  utili- 
ties, the  establishment  of  efficient  sewers,  the  best  meth- 
ods of  fighting  epidemics  of  various  diseases,  and  similar 
problems  require  a  public  opinion  competent  to  function, 
either  directly  or  indirectly,  upon  questions  of  the  most 
complicated  and  technical  character.  The  question  of  pre- 


28  POPULAR  GOVERNMENT 

paring  the  electorate  to  deal  effectively  with  these  prob- 
lems becomes  a  matter  of  prime  importance  to  the  de- 
mocracy that  would  perpetuate  itself. 

The  second  reason  for  a  more  aggressive  attitude  to- 
ward the  problem  of  perfecting  public  opinion  is  the 
growth  of  class  problems,  which  tends  to  produce  a  class 
consciousness  with  its  inevitable  tendency  toward  the  de- 
velopment of  irreconcilable  groups.  Moreover,  with  this 
development  there  has  come  a  professional  group  of  ad- 
vertising experts  and  campaign  managers,  who  have  mas- 
tered the  art  of  suggestion,  and  of  mobilizing  the  pas- 
sions and  prejudices  of  the  populace  to  their  own  desires. 
The  development  of  public  opinion  or  impressions 
through  other  than  rational  methods  has  become  a  sci- 
ence. Where  great  or  vital  interests  are  at  stake,  these 
forces  for  the  irrational  control  of  public  opinion  will  be 
inevitably  employed.  Through  the  vicious  methods  of 
capitalizing  group,  class,  or  racial  prejudices  and  hostili- 
ties, existing  antagonisms  are  increased  and  irreconcil- 
ables  developed.  In  describing  these  forces,  Graham 
Wallas  observed  that  "if  the  rich  people  in  any  modern 
state  thought  it  worth  their  while,  in  order  to  secure  a 
tariff,  or  legalize  a  trust,  or  oppose  a  confiscatory  tax, 
to  subscribe  a  third  of  their  income  to  a  political  fund,  no 
Corrupt  Practices  Act  yet  invented  would  prevent  them 
from  spending  it.  If  they  did  so,  there  is  so  much  skill 
to  be  bought,  and  the  art  of  using  skill  for  the  production 
of  emotion  and  opinion  has  so  advanced,  that  the  whole 
condition  of  political  contests  would  be  changed  for  the 
future.  No  existing  party,  unless  it  enormously  increased 
its  own  fund  or  discovered  some  other  new  source  of 
political  strength,  would  have  any  chance  of  permanent 
success."1  The  only  limits  to  this  dangerous  power  are 
iplmnan  Nature  in  Politics,  p.  5. 


IMPROVEMENT  OF  PUBLIC  OPINION          29 

those  provided  by  the  intelligence,  convictions,  and  train- 
ing of  the  citizens  to  whom  it  will  be  applied.  For  a  de- 
mocracy to  ignore  the  training  of  its  citizens  under  these 
conditions  is  to  court  disaster. 

The  third  factor  augmenting  the  importance  of  popu- 
lar education  for  improving  the  efficiency  of  public  opin- 
ion is  the  immigration  problem  in  America.  With  the 
almost  uninterrupted  stream  of  immigration  that  has 
poured  into  our  country,  totaling  over  thirty-three  mil- 
lions in  a  hundred  years,  America  is  confronted  with  a 
constant  menace  to  the  homogeneity  of  her  population 
and  to  the  vitality  and  integrity  of  her  ideals.  Unless  the 
process  of  education  and  Americanization  can  be  carried 
on  with  great  energy  and  effectiveness,  the  efficiency  of 
public  opinion  in  controlling  the  national  destinies,  ac- 
cording to  American  ideals,  will  be  materially  impaired. 

There  are  two  ways  in  which  the  improvement  of  pub- 
lic opinion  must  take  place.  In  the  first  place  it  must  be 
enlarged  in  its  scope.  The  expanding  functions  of  the 
modern  state  require  the  formulation  of  public  opinion 
with  regard  to  many  things,  heretofore  considered  out- 
side the  realm  of  political  control.  Unless  the  popular 
point  of  view  and  thought  can  be  expanded,  by  educa- 
tional and  other  methods,  to  include  these  things,  democ- 
racy will  suffer.  Unless  the  people  can  be  educated  to  the 
idea  of  compulsory  education,  prohibition,  new  forms  of 
public  control,  and  other  innovations  in  our  political  de- 
velopment, not  only  will  democracy  fail  to  be  efficient,  but 
irreconcilables  will  develop.  In  the  second  place,  public 
opinion  should  be  improved  by  making  it  a  more  accurate 
and  reliable  guide  for  political  achievement.  Unless  the 
improvement  of  public  opinion  along  the  lines  here  sug- 
gested can  keep  pace  with  the  increasing  stress  and  strain 
to  which  modern  governments  are  subjected,  and  with  the 


30  POPULAR  GOVERNMENT 

technical  nature  of  the  problems  which  they  present,  the 
hope  of  an  effective  democracy  is  gone. 

An  analysis  of  public  opinion  seems  to  indicate  that 
most  public  opinion  is  the  result  of  suggestion  or  author- 
ity, harmonizing  with  the  established  philosophy  or  con- 
victions of  the  people,  or  that  it  is  a  result  of  a  more  or 
less  rational  process  of  acquiring  facts  and  making  the 
proper  comparison,  analysis,  or  generalization,  in  the 
light  of  the  established  opinions  of  the  thinker.  In  view 
of  these  facts  there  seems  to  be  three  main  forces  in  the 
creation  of  public  opinion  upon  political  affairs — the 
press,  party  leadership,  and  the  intellectual  and  philo- 
sophical equipment  of  the  people.  The  problem  of  im- 
proving public  opinion  is,  therefore,  primarily  concerned 
with  these  three  forces. 

The  influence  of  the  press  upon  both  popular  impres- 
sions and  public  opinion  is  tremendous.  The  modern 
newspaper  with  its  artful  headlines,  its  clever  cartoons,  its 
sometimes  misleading  "leads,"  and  its  selected  news, 
wields  an  almost  resistless  power.  The  most  dangerous 
aspects  of  this  problem  are  found  in  the  fact  that  it  is 
through  suggestion  rather  than  through  news,  argument, 
and  persuasion  that  popular  thinking  is  controlled.1  Mr. 
H.  E.  Gardiner  found  that  a  very  important  factor  in 

*Just  what  are  the  controlling  factors  in  suggestion  and  the  rela- 
tive value  of  the  various  means  of  controlling  and  guiding  public  opin- 
ion is  a  matter  for  the  student  of  social  psychology.  In  the  author's 
opinion  there  can  be  no  truly  scientific  account  of  politics  and  no  ac- 
curate formulation  of  political  theory  until  we  have  the  groundwork 
supplied  by  psychological  research  in  the  field  of  politics.  Much 
scholarly  and  scientific  work  has  been  done  on  the  descriptive  and  legal 
aspects  of  the  subject,  but  no  adequate  theory  of  politics  is  possible 
which  does  not  include  the  dynamic  elements  of  human  nature.  Hap- 
pily there  is  a  recent  tendency  on  the  part  of  students  of  social  psychol- 
ogy to  push  their  inquiries  into  the  field  of  political  phenomena.  Mc- 
Dougall's  Social  Psychology,  Graham  Wallas'  Human  Nature  in 
Politics,  Cooley's  Social  Organisation,  Ross'  Social  Control  and  similar 
volumes  have  an  important  bearing  upon  political  science  that  cannot 
be  ignored. 


IMPROVEMENT  OF  PUBLIC  OPINION          31 

the  fall  of  the  Asquith  Ministry  was  the  action  of  the 
Northcliff  press  in  the  continual  featuring  of  the  two 
words  "wobbling"  and  "muddling"  in  connection  with  the 
ministry.  This  was  done  in  the  headlines  and  leads,  and 
was  repeated  and  reiterated  until  the  public  unconsciously 
accepted  it  as  the  truth,  not  as  a  result  of  evidence  or  rea- 
son, but  of  suggestion.  The  author  recently  had  charge 
of  a  discussion,  on  the  general  subject  of  the  ratification 
of  the  covenant  for  the  League  of  Nations,  among  a 
group  of  fifty  picked  business  men.  They  were  all  accus- 
tomed to  reading  the  same  newspaper,  which  was  very 
ably  managed  and  which  had  taken  a  very  definite  stand 
in  favor  of  the  Lodge  reservations,  and  which  was  vio- 
lently opposed  to  ratification  in  any  other  form.  The 
great  majority  of  those  present  took  the  same  position 
as  the  paper.  The  significant  thing  was  that  only  one  pres- 
ent had  read  the  covenant,  and  not  one  of  them  had  read 
the  Lodge  reservations  which  they  favored  so  strongly, 
and  only  five  or  six  even  had  any  definite  idea  as  to  any 
of  the  matters  included  in  the  reservations,  further  than 
that  they  involved  the  Monroe  Doctrine  and  that  they 
were  intended  to  protect  the  vital  interests  of  America. 
This  experience  seems  to  demonstrate  that  the  newspaper 
in  question  had  moulded  the  opinion  of  the  great  majority 
of  the  men  present,  and  that  it  had  done  so  through  sug- 
gestion rather  than  through  argument  or  evidence.  They 
had  evidently  gone  no  farther  than  to  glance  at  the  car- 
toons, the  headlines,  and  the  leads,  for  if  they  had  read 
the  news,  the  evidence,  the  arguments,  and  the  editorials, 
they  would  have  read  at  least  some  of  the  reservations 
and  would  have  had  some  definite  impressions  as  to  their 
content.  A  newspaper  can,  therefore,  create  public  opin- 
ion or  impression  regardless  of  the  evidence,  facts,  and 
arguments. 


32  POPULAR  GOVERNMENT 

President  Garfield,  in  addressing  the  Republican  Con- 
vention of  1880,  declared  that  the  verdict  upon  the  work 
of  the  convention  would  be  determined  "by  four  millions 
of  Republican  firesides,  where  the  thoughtful  voters, 
with  wives  and  children  about  them,  with  the  calm 
thoughts  inspired  by  love  of  home  and  country,  with  the 
history  of  the  past,  the  hopes  of  the  future,  and  the 
knowledge  of  the  great  men  who  have  adorned  and 
blessed  our  nation  in  days  gone  by."  To  this  eloquent  as- 
sertion Graham  Wallas  has  retorted  that  uthe  divine 
oracle  whether  in  America  or  in  England,  turns  out,  too 
often,  only  to  be  a  tired  householder,  reading  the  head- 
lines and  personal  paragraphs  of  his  party  newspaper, 
and  half-consciously  forming  mental  habits  of  mean  sus- 
picion or  national  arrogance.  Sometimes,  indeed,  during 
an  election,  one  feels  that  it  is,  after  all,  in  big  meetings, 
where  big  thoughts  can  be  given  with  all  their  emotional 
force,  that  the  deeper  things  of  politics  have  the  best 
chance  of  recognition."1 

It  thus  becomes  evident  that  the  power  that  controls 
the  press  can  exercise  a  tremendous  amount  of  arbitrary 
control  over  the  destinies  of  a  democracy.  If  its  influ- 
ences were  limited  to  the  news  and  arguments  that  it  pub- 
lished, its  power  would  be  educational  rather  than  arbi- 
trary, but  when  the  larger  part  of  its  influence  is  exerted 
through  suggestion  and  similar  non-rational  methods,  it 
may  represent  irresponsible  power.  A  man  with  the  finan- 
cial and  editorial  genius,  by  building  up  a  metropolitan 
paper,  can  frequently  dominate  the  politics  of  a  state.  Any 
adequate  program,  therefore,  for  the  improvement  of 
public  opinion  must  include  the  influence  of  the  press. 

The  public  control  of  the  press  in  the  interests  of  ve- 
racity and  good  faith  has  frequently  been  urged  in  many 

*Human  Nature  in  Politics,  p.  112. 


IMPROVEMENT  OF  PUBLIC  OPINION          33 

forms.  The  laws  of  libel  operate  as  some  restraint  upon 
dishonest  statements  that  do  injury  to  individuals.  But  a 
newspaper  may  conduct  a  very  effective  campaign  against 
an  important  public  issue,  in  defiance  of  evidence  and  the 
public  weal,  and  yet  easily  avoid  the  offense  of  libel.  An- 
other measure  has  been  to  compel  the  newspapers  to 
give  publicity  regarding  the  identity  of  the  editors,  man- 
agers, publishers,  owners,  bondholders,  mortgagees,  and 
stockholders,  in  order  that  the  reading  public  might  know 
what  interests  backed  the  paper,  and  what  bias  to  expect. 
This  was  enacted  in  a  federal  statute  in  1912,1  but  its 
beneficial  results  have  not  been  obvious. 

Another  proposal  for  safeguarding  the  public  interest 
against  the  possible  abuse  of  power  by  the  press  is  the 
state  license  plan.  Several  years  ago  Mr.  Barrett  O'Hara 
prepared  a  bill  providing  such  a  system  for  the  state 
legislature  of  Illinois.  In  the  following  striking  statement 
of  his  own  experience,  as  a  reporter  of  a  newspaper  in  a 
city  of  six  thousand,  he  gives  his  reasons  for  the  license 
plan.  "Here  was  a  city  of  six  thousand  persons,  a  reading 
community  of  fifty  thousand  men  and  women,  whose  hap- 
piness and  peace  of  mind,  whose  reputation  and  honor  lit- 
erally rested  in  the  palm  of  my  hand.  Under  age  and 
unlicensed,  I  could  not  have  practiced  law,  I  could  not 
have  served  as  doctor,  surgeon,  or  dentist,  I  could  not 
even  have  been  a  nurse  or  a  barber;  but  I  could  serve  the 
community  as  reporter  and  editor.  In  my  hands,  boyish 
and  inexperienced,  without  a  single  legal  safeguard,  was 
placed  the  dynamite  of  publicity,  a  weapon  powerful 
enough,  if  improperly  and  unwisely  used,  to  destroy  the 
happiness  of  hundreds  of  people/'2  The  bill  provided  for 
a  State  Board  of  Journalism  which  was  given  power  to 
license  newspaper  men  as  members  of  the  profession  of 

*U.  S.  Compiled  Statutes,  1918,  sec.  7313. 

2Merle  Thorpe,  The  Coming  Newspaper,  pp.  149,  150. 


34  POPULAR  GOVERNMENT 

journalism.  Persons  should  be  licensed  only  upon  proof 
of  legal  age,  the  equivalent  of  a  high  school  education, 
two  years'  collegiate  training  or  an  equal  period  of  news- 
paper experience,  positive  proof  of  good  moral  charac- 
ter, and  the  successful  passing  of  a  written  examination 
given  by  the  state  board.  Provision  was  made  for  revo- 
cation of  licenses.1  The  bill  was  defeated,  but  the  question 
of  protecting  the  public  against  error  and  inexperience  in 
the  publication  of  information  remains  an  unsolved  prob- 
lem of  profound  importance  to  popular  government. 

Another  suggestion  worthy  of  consideration  is  to  cre- 
ate a  criminal  liability  for  the  deliberate  suppression, 
falsification,  or  unjustifiable  coloring  of  news  items.  The 
administration  and  enforcement  of  such  a  law  would  pre- 
sent peculiar  difficulties,  but  if  efficiently  done,  should  pre- 
vent some  of  the  grosser  abuses  in  the  creation  of  inaccu- 
rate public  opinion.  Any  such  law  should  provide  that 
good  faith  and  probable  cause  be  accepted  as  a  valid 
defense.  In  this  manner  the  honest  editor  would  receive 
ample  protection.  Surely  in  a  democratic  government,  the 
public  interest  in  the  good  faith  and  accuracy  of  the  news 
is  of  sufficient  moment  to  justify  criminal  measures  in  its 
behalf,  if  they  can  be  made  effective. 

In  addition  to  these  means  of  public  control,  several 
other  suggestions  have  received  consideration  from  time 
to  time.  There  has  been  considerable  agitation  for  an 
endowed  press,  controlled  by  public-spirited  men,  freed 
from  the  stress  and  strain  of  financial  need,  and  from  the 
fears  and  thoughts  of  the  advertiser's  ire.  The  suspicion 
that  has  rightly  or  wrongly  been  directed  against  priv- 
ately endowed  educational  institutions  might  raise  some 
question  as  to  the  results  that  would  follow.  Moreover, 
the  practical  difficulties  in  the  way  will  probably  prevent 

*Ibid.,  pp.  15S-6. 


IMPROVEMENT  OF  PUBLIC  OPINION          35 

it  from  playing  a  large  part  in  the  solution  of  the  prob- 
lem. The  cooperative  press  in  which  the  ownership  and 
management  is  vested  in  a  large  number  of  small,  local 
stockholders  has  been  urged  by  others  as  a  splendid  solu- 
tion of  the  problem,  especially  among  smaller,  homo- 
geneous communities.  The  possibilities  here  should  be 
attractive,  though  the  difficulties  are  great,  and  there  is 
no  actual  experience  upon  which  to  build. 

It  will  be  readily  seen  from  the  foregoing  that  little 
has  so  far  been  accomplished  in  the  way  of  protecting 
public  opinion  from  the  control  of  an  ignorant,  dishonest, 
or  prejudiced  press.  The  public  do  not  seem  to  have 
grasped  the  vital  importance  of  a  fair  and  accurate  press 
to  an  efficient  democracy.  It  has  therefore  been  left  to 
the  unregulated  discretion  of  the  proprietor.  He  may 
be  a  "king  maker"  who  seeks  to  be  the  power  behind  the 
throne;  he  may  be  the  agent  of  some  special  interest 
who  desires  to  mislead  the  public  to  his  own  private  gain; 
he  may  be  merely  a  shrewd  business  man,  who  controls 
the  policy  of  the  paper  to  suit  the  purposes  of  the  adver- 
tiser; he  may  be  a  public-spirited  citizen  who  desires  only 
the  highest  service  to  his  community;  whatever  be  his 
motives,  all  he  needs  to  do  is  to  buy  the  paper  and  the 
brains  to  run  it  and  the  power  is  his?  In  the  last  analysis, 
under  our  present  re'gime,  the  only  limits  to  that  power 
are  to  be  found  in  the  intellectual  and  philosophical  equip- 
ment of  the  public.  If  they  are  grounded  in  sound,  funda- 
mental convictions,  and  are  alert  and  critical  in  their  point 
of  view,  the  power  of  the  press  for  evil  is  definitely 
reduced.  The  financial  strength  of  the  paper  is  condi- 
tioned upon  the  quantity  and  quality  of  circulation,  which 
determines,  with  an  almost  mathematical  certainty,  its 
advertising  rates.  Until  something  constructive  is  done, 


36  POPULAR  GOVERNMENT 

therefore,  we  must  rely  upon  the  education  of  the  people 
to  restrain  the  abuses  of  the  press. 

The  second  factor  in  the  creation  of  public  opinion  is 
party  leadership.  Its  importance  scarcely  will  be  ques- 
tioned. Especially  is  this  true  with  regard  to  matters 
outside  the  domain  of  popular  knowledge.  Regarding  for- 
eign affairs,  about  which  most  of  our  citizens  are  pro- 
foundly ignorant,  there  is  almost  a  fatalistic  tendency  to 
follow  the  dictates  of  party  leadership.  An  elaborate 
organization  was  created  in  Wisconsin  to  mould  public 
sentiment  in  favor  of  a  league  of  nations,  just  after  the 
signing  of  the  armistice.  The  idea  received  almost  unani- 
mous approval.  But  when  the  proposed  covenant  was 
given  to  the  public,  and  the  Republican  leaders  at  Wash- 
ington announced  their  opposition  to  it  in  the  form  pre- 
sented, immediately  there  followed  a  division  along  party 
lines.  And  this  is  neither  strange  nor  irrational.  Very 
few  had  the  historic  background  or  the  knowledge  of 
world  affairs  to  come  independently  to  a  rational  conclu- 
sion. On  such  occasions,  party  leadership  becomes  of 
paramount  importance. 

This  has  been  generally  recognized,  and  in  the  last 
generation  the  state  and  federal  governments  have  under- 
taken so  to  regulate  political  parties  that  party  member- 
ship should  have  full  and  adequate  control  in  the  selection 
of  party  candidates,  party  officers,  and  party  platforms. 
It  was  one  of  the  theories  of  this  mass  of  legislation  that, 
by  giving  the  party  membership  actual  power  to  choose 
and  dismiss  its  leaders,  the  qualities  of  leadership  would 
be  improved.  This  legislation  may  be  divided  into  five 
general  types.  The  first  type  of  legislation  sought  to 
establish  reasonable  rules  for  the  conduct  of  the  party's 
business  and  to  see  that  they  were  generally  observed. 
These  rules  generally  provided  for  such  matters  as  the 


IMPROVEMENT  OF  PUBLIC  OPINION          37 

time  and  place  of  political  meetings  and  conventions  and 
for  adequate  notice  to  the  public,  in  order  that  the  evils 
of  the  usnap  primaries,"  "packed  conventions^"  and  simi- 
lar abuses  might  be  prevented. 

A  second  type  of  legislation  regulating  political  parties 
is  found  in  the  corrupt  practices  act  governing  both  party 
and  regular  elections.  These  acts  penalize  bribery,  fraud, 
intimidation,  violation  of  party  rules,  and  similar  abuses. 
The  third  class  of  legislation  is  that  dealing  with  party 
finance  and  the  collection  and  expenditure  of  campaign 
funds.  The  most  ordinary  provision  is  to  provide  for  com- 
plete publicity  regarding  all  contributions  and  expendi- 
tures. Federal  laws  and  many  state  laws  prohibit  cam- 
paign contributions  by  corporations  and  limit  the  amount 
to  be  expended  by  certain  candidates.  For  instance,  fed- 
eral legislation  limits  the  campaign  expenditures  of  a 
representative  to  $5,000  and  of  a  senator  to  $10,000. 
The  limitations  upon  amount,  though  extremely  difficult 
to  enforce,  are  of  increasing  importance,  particularly  in 
the  states  where  nominations  are  by  direct  primary.  For, 
as  heretofore  observed,  the  business  of  advertising  and 
of  creating  popular  impressions,  through  the  non-rational 
means  of  suggestion,  has  been  reduced  to  such  a  science 
that  the  man  who  has  ample  funds  to  purchase  such  pro- 
fessional skill  may  become  the  creator  rather  than  the 
creature  of  public  opinion,  regardless  of  the  merits  and 
principles  involved, 

A  fourth  class  of  regulations  has  to  do  with  the  election 
of  delegates  to  party  conventions,  generally  known  as  the 
indirect  primary.  Here  the  laws  frequently  provide  that 
delegates  to  conventions  shall  be  elected  by  the  members 
of  the  party  under  all  the  safeguards  that  the  law  extends 
to  regular  elections.  In  this  manner  the  right  of  the  party 
membership  to  be  represented  in  the  party  convention 


38  POPULAR  GOVERNMENT 

by  men  of  their  own  choosing  is  assured.  The  fifth  group 
of  regulations  is  concerned  with  the  direct  nomination  of 
candidates  by  the  members  of  the  party,  known  as  the  di- 
rect primary,  which  are  frequently  conducted  under  the 
regular  election  laws  of  the  state.  Closely  related  to  this 
is  the  preferential  primary,  where  the  party  members 
elect  delegates  to  a  nominating  convention  and  at  the 
same  time  vote  their  preference  in  regard  to  candidates, 
thus  instructing  or  binding  their  delegates  as  to  the  candi- 
dates desired.1 

In  these  regulations  the  importance  of  party  leadership 
is  recognized  and  much  has  been  accomplished  in  the  way 
of  making  the  party  leadership  responsible  to  the  voters 
of  the  party,  in  nullifying  dishonest  and  corrupt  methods 
of  control,  and  in  bringing  a  large  measure  of  publicity 
upon  party  affairs.    Despite  these  regulations,  however, 
party  leadership  frequently  depends  upon  the  spirit  of 
blind  partisanship  among  its  followers  in  the  creation  of 
popular  impressions  or  opinions.  The  formulas  and  politi- 
cal catechisms  of  party  managers  are  too  frequently  ac- 
cepted at  their  face  value,  with  no  rational  process  of 
thought  involved.    And  the  opinion  that  prevails  in  the 
average  election  is  too  frequently  the  product  of  author- 
ity or  suggestion,  rather  than  of  critical  thought.   With 
the  party  managers  so  directly  responsible  to  the  people 
as  they  are  to-day,  it  may  safely  be  presumed,  perhaps, 
that  they  will  exercise  greater  care  and  diligence  in  the 
selection  of  candidates  and  issues,  but  this  is  merely  an- 
other way  of  saying  that  in  the  last  analysis,  the  quality 
of  opinion  that  prevails  will  be  conditioned  directly  upon 
the  intelligence  and  convictions  of  the  people.   For  politi- 
cal managers  must  look  to  the  public  for  their  power  and 

'For  a  fuller  discussion  of  the  legal  regulations  of  political  parties 
see  P.  O.  Ray,  An  Introduction  to  Political  Parties  and  Practical 
Politics  (revised  ed.)- 


IMPROVEMENT  OF  PUBLIC  OPINION          39 

strength,  and  the  character  of  leadership  and  political 
opinion  that  is  produced  by  these  managers  will  depend 
upon  what  the  public  exact  of  them  as  the  price  of  popu- 
lar support  If  the  public  is  satisfied  with  specious  pleas 
of  the  demagogue  and  the  partisan,  it  is  expecting  too 
much  of  human  nature  to  suppose  that  the  party  leader 
will  pay  a  higher  price  for  his  popular  support  than  the 
public  requires.  For  no  political  manager  or  boss  has 
any  power  save  that  which  the  people  give,  and  the  peo- 
ple can  exact  what  price  they  will. 

This  brings  us  to  the  third  and  final  factor  in  the  crea- 
tion of  public  opinion,  the  intellectual  and  philosophical 
equipment  of  the  people.  In  the  last  analysis  it  is  that 
factor  that  finally  controls.  No  newspaper  can  have 
strength  without  popular  support  and  no  party  leader- 
ship can  enjoy  power,  save  for  a  fleeting  instant,  without 
popular  confidence  and  approval.  The  improvement  of 
public  opinion  must  very  largely  depend,  therefore,  upon 
the  intelligence  and  convictions  of  the  people.  This  im- 
mediately presents  two  questions,  viz. :  what  are  the  popu- 
lar qualifications  that  will  enable  the  people  to  form 
opinions  that  are  more  rational  and  accurate,  and  how 
may  those  qualifications  be  developed?1 

The  author  believes  that  there  are  three  qualifications 
that  would  materially  aid  in  improving  the  quality  of  pub- 
lic opinion,  and  that  these  qualifications  may  be  developed 
to  a  very  efficient  degree  in  connection  with  the  curriculum 
of  the  public  school. 

The  first  qualification  which  our  schools  might  reason- 
ably be  expected  to  develop  in  all  the  pupils  is  the  habit 
of  critical  observation.  This  is  largely  based  upon  the  in- 
stinct of  curiosity,  and  the  delight  of  intellectual  discov- 

aThe  author's  recent  volume  on   Dynamic   Americanism   is   devoted 
to  these  two  questions. 


40  POPULAR  GOVERNMENT 

ery.  This  can  be  developed  in  connection  with  all  phases 
of  school  work,  and  is  perhaps  best  done  in  the  socialized 
recitation,  where  the  instinct  of  competition  is  enlisted  to 
detect  error  in  fact  or  judgment.  The  best  way  to  defeat 
the  power  of  suggestion  is  to  expose  ruthlessly  its  devices. 
A  conjurer  is  able  to  arouse  a  certain  awe  and  even  wor- 
ship in  some  quarters  until  his  tricks  are  explained,  when 
he  becomes  very  commonplace.  Let  children  once  learn 
the  popular  methods  of  suggestion  and  they  become  the 
objects  of  amusement  rather  than  of  veneration  or  belief. 
In  the  study  of  current  events  the  child  may  soon  be 
taught  the  editorial  devices  of  the  press,  by  being  re- 
quired to  compare  the  news,  headlines,  leads,  and  edi- 
torials of  opposing  papers.  The  comparison  of  the  cam- 
paign literature  of  opposing  parties,  the  checking  up  of 
platform  utterances  with  actual  achievement,  and  similar 
methods  may  be  employed  to  develop  the  habit  of  critical 
analysis  and  to  stimulate  the  curiosity.  What  better  and 
more  stimulating  subjects  for  theme  writing  could  be  em- 
ployed? Graham  Wallas  has  suggested  that  a  young 
child  could  be  very  easily  taught  why  it  is,  when  he  is 
sent  to  buy  a  bar  of  soap,  he  feels  inclined  to  purchase 
that  which  is  most  widely  advertised,  and  why  there  is 
no  rational  relation  between  that  feeling  and  the  proc- 
esses that  would  result  in  the  wisest  selection  of  the  soap.1 
The  second  method  for  increasing  the  efficiency  of  the 
citizen  is  the  establishment,  in  the  life  and  consciousness 
of  the  child,  of  a  definite  connection  between  his  social 
instincts  and  the  facts  of  practical  politics.  This  is  essen- 
tial to  create  the  dynamics  of  citizenship.  If  a  Mexican 
mob  kills  American  citizens,  public  opinion  is  aroused  to 
a  state  of  violent  protest  or  of  war.  But  American  mobs 
have  lynched  on  the  average  over  100  persons  annually 

1  Human  Nature  in  Politics,  p.  189. 


IMPROVEMENT  OF  PUBLIC  OPINION          41 

for  thirty  years  and  it  causes  scarcely  a  ripple  upon  the 
surface  of  our  complacency.  And  yet  no  one  would  argue 
that  the  permission  of  such  crimes  by  the  misgoverned 
people  of  Mexico  was  a  worse  offense  than  its  toleration 
by  our  enlightened  government.  The  failure  of  our  de- 
mocracy to  provide  adequate  protection  against  prover- 
bial industrial  accidents  and  disease  results  annually  in  an 
appalling  loss  of  life  and  limb,  and  yet  the  public  seems 
unconcerned.  The  difficulty  is  that  the  relation  between 
war,  with  its  heroism,  tragedy,  and  sacrifice,  and  the  nor- 
mal instincts  of  youth  is  obvious,  direct,  and  vital.  Their 
instinctive  life  is  unconsciously  organized  around  the  con- 
cepts of  martial  glory  and  the  only  dynamic  patriotism 
that  they  feel  is  expressed  in  terms  of  military  exploits 
and  national  honor.  And  yet  the  hope  of  the  situation 
lies  in  the  fact  that  it  is  not  necessarily  so.  If  the  child 
is  taught  to  see  in  his  government  not  the  mere  legal 
skeleton  of  its  framework,  but  a  vital,  organic  instru- 
ment, clothed  with  the  flesh  and  blood  of  human  interest, 
entrusted  with  the  sacred  task  of  saving  life  and  limb 
from  needless  accident,  and  of  protecting  the  helpless 
and  the  weak  from  the  tyranny  of  the  strong,  the  gener- 
ous emotional  life  of  youth  will  respond  with  a  patriotism 
of  peace  as  virile  and  effective  as  the  patriotism  of  war. 
When  the  deeply  human  significance  of  government  is 
brought  home  with  dramatic  vividness,  a  new  interest  in 
politics  will  be  aroused,  thoughtful  inquiry  and  discussion 
will  be  stimulated,  and  there  will  result  a  public  opinion 
of  increasing  accuracy  and  strength,  where  before  igno- 
rance and  indifference  held  sway. 

The  third  method,  whereby  the  schools  can  prepare 
the  way  for  a  more  accurate  public  opinion,  is  in  impreg- 
nating in  the  consciousness  of  the  child,  as  fundamental 
convictions  of  his  life,  several  of  the  basic  ideals  that 


42  POPULAR  GOVERNMENT 

experience  has  shown  to  be  essential  to  the  strength  and 
life  of  our  democracy.  If  all  of  our  citizens  were  thor- 
oughly grounded  in  these  ideals,  and  the  historic  back- 
ground that  produced  them,  American  public  opinion 
would  gain  in  unity,  strength,  and  quality.  In  the  preced- 
ing chapter  we  have  seen  the  important  part  played  by 
established  convictions  in  the  formulation  of  opinion, 
and  we  should  build  accordingly.  This  does  not  mean  a 
mere  reiteration  of  trite  and  traditional  phrases,  a  mere 
lip  service  to  the  ideals  of  the  nation,  but  a  careful  trac- 
ing out,  from  the  evidence  of  history,  of  those  funda- 
mental concepts,  with  an  adequate  understanding  of  what 
they  have  cost  humanity  in  terms  of  blood  and  treasure, 
resulting  in  a  profound  devotion,  born  of  a  realistic  con- 
sciousness of  their  value  and  a  gratitude  to  those  whose 
suffering  and  sacrifice  have  brought  them  forth.  The 
fundamental  value  of  liberty  should  be  one  of  the  connec- 
tions thus  developed.  It  should  be  shown  that  liberty 
means  more  than  freedom  from  physical  restraint  or  an 
absence  of  political  tyranny.  It  should  be  translated  into 
terms  of  modern  problems,  and  comprehended  as  the 
energizing  force  from  which  springs  the  imagination,  the 
genius,  and  the  spontaneity  of  our  national  life.  Its  ene- 
mies of  to-day  are  economic  rather  than  political,  and  its 
correlatives  of  toleration  and  self-restraint  need  an  equal 
emphasis. 

To  this  ideal  of  liberty  should  be  added  the  ideal  of 
national  unity,  the  conviction  that  progress  in  democracy 
must  come  by  evolution  and  not  revolt,  and  that  for  every 
ideal  and  right  in  a  democracy  there  is  a  corresponding 
duty  on  every  citizen  to  see  that  the  right  is  respected  and 
the  duty  is  fulfilled.  A  new  sense  of  individual  responsi- 
bility for  democratic  ideals  is  indispensable  to  a  sustained 
and  intelligent  interest  in  public  problems.  Without  such 


UVfi»ROVEMENT  OF  PUBLIC  OPINION          43 

a  sustained  interest  public  opinion  can  be  neither  accurate 
nor  virile. 

We  have  found  that  democracy  is  not  automatic.  It 
does  not  necessarily  guarantee  the  conditions  of  its  own 
success.  With  the  rapid  development  of  technical  prob- 
lems, the  tendency  toward  class  consciousness,  and  the 
grave  menace  of  immigration,  an  increasingly  heavy 
strain  is  cast  upon  the  fabric  of  our  institutions.  If  popu- 
lar government  is  to  perpetuate  itself  under  these  condi- 
tions, public  opinion  must  be  extended  in  its  scope  and 
made  more  accurate  in  its  judgments.  To  accomplish  this 
we  must  attack  the  problem  of  securing  a  more  accurate, 
honest,  and  impartial  press,  a  difficult  but  a  profoundly 
important  task.  Party  leadership  must  be  safeguarded 
against  vicious  influence  and  restrained  from  the  abuse  of 
power.  But  the  only  final  check,  either  upon  the  conduct 
of  the  press  or  the  character  of  party  leadership,  is  to  be 
found  in  the  intelligence  and  convictions  of  the  people. 
It  is  in  the  development  of  the  latter,  through  our  public 
schools,  that  we  find  the  surest  method  of  improving  the 
scope  and  quality  of  public  opinion.  And  this  is  the  only 
enduring  foundation  upon  which  the  structure  of  democ- 
racy can  rest  secure. 


SUGGESTIVE  QUESTIONS  FOR 

CHAPTER  II 

\y  Has  the  increasing  intelligence  of  the  average  citi- 
zen kept  pace  with  the  tremendous  increase  in  the  num- 
ber and  technical  nature  of  public  problems? 

Ojfc  If  it  has  not,  then  how  can  the  public  proceed  to 
the'mtelligent  solution  of  such  problems? 

III.  Explain  in  detail  the  relation  of  Americanization 
work  to  the  cause  of  popular  government  in  America. 

IV.  What  concrete  examples  can  you  cite  of  where 
great  advertising  schemes  have  developed  a  form  of  pub- 
lic opinion  or  popular  impression  by  suggestion  or  other 
non-rational  methods? 

\\M  Is  the  so-called  independent  press  free  from  re- 
sponsibility to  any  one  save  its  owner  an  improvement 
upon  the  party  press,  where  the  political  party  could  be 
held  to  accountability  for  its  conduct?  Discuss. 

VI.    Do  the  legal  reforms  of  political  parties  neces- 
sarily guarantee  a  higher  type  of  political  leader?  Why? 
(TvID    Why  is  the  political  manager  or  boss  absolutely 
detjgment  upon  the  conditions  of  popular  approval? 

f/ lit)  In  what  practical  way  would  the  habit  of  criti- 
cartrb^ervation  be  useful  in  developing  a  public  opinion 
that  would  be  more  reliable? 

IX.  In  what  practical  way  would  the  moral  and  emo- 
tional development  of  youth  tend  to  improve  the  quality 
ofoublic  opinion? 

r5Q  Explain  the  relation  of  sound  popular  conviction 
tome  reliability  of  public  opinion. 

44 


CHAPTER  III 

REPRESENTATIVE  GOVERNMENT  AND  DIRECT  DEMOCRACY 

IT  was  Aristotle  who  argued  that  in  a  true  republic, 
while  the  laws  must  conform  generally  to  the  popular 
will,  yet  at  the  same  time  the  people  must  be  ready  to 
elect,  for  the  conduct  of  the  state's  affairs,  men  of  supe- 
rior training  in  the  public  business  whose  guidance  they 
will  accept.  If  one  wants  a  pair  of  shoes,  one  does  not 
try  to  make  them  for  one's  self,  but  employs  a  cobbler, 
because  of  the  latter' s  superior  skill  and  experience,  and 
then  reserves  judgment  for  one's  self  as  to  whether  the 
shoes  fit  or  pinch.  If  the  shoes  fit  one  continues  to  employ 
the  cobbler,  otherwise  another  one  is  sought.  So  when 
people  desire  the  efficient  administration  of  public  affairs, 
they  should  not  try  to  do  it  all  themselves,  but  they  might 
well  secure  the  services  of  statesmen  and  public  men 
whose  superior  knowledge,  skill,  and  experience  has  bet- 
ter equipped  them  for  the  task,  while  the  people  reserve 
judgment  on  the  character  of  the  services  so  performed. 
This  remarkably  lucid  discussion  of  the  relation  of  pub- 
lic opinion  to  representative  government  has  remained 
unrefuted,  though  not  infrequently  ignored.  In  the  gust 
of  histrionic  statesmanship  which  swept  America  in  the 
first  years  of  the  decade  now  drawing  to  a  close,  such 
words  of  wisdom  were  unfortunately  ignored.  In  spite 
of  the  marvelous  increase  in  the  complexity  and  technical 
character  of  public  administration,  the  reformers  de- 
manded less  technical  skill  and  larger  direct  control.  If 
the  technical  development  of  the  law  followed  too  tardily 
behind  the  new  problems  and  needs  created  by  the  increas- 

45 


46  POPULAR  GOVERNMENT 

ing  speed  and  complexity  of  our  social  and  economic  life, 
the  reformer  ignored  the  idea  of  increasing  the  scientific 
and  scholarly  character  of  the  bench,  and  demanded  the 
adoption  of  the  recall  in  order  that  the  people  might  be 
supreme.  If  American  workmen  complained  justly  against 
the  ravages  of  industrial  disease,  and  the  ablest  students 
of  the  problem  advocated  the  legislative  adoption  of  scien- 
tifically drafted  laws,  it  frequently  was  forgotten  in  the 
earnest  efforts  to  secure  the  initiative  and  referendum 
as  the  panacea  for  economic  ills. 

The  people,  suddenly  aroused  from  a  long  period  of 
indifference,  seeing  glaring  and  tragic  instances  of  govern- 
mental inefficiency,  and  finding  that  those  into  whose 
hands  they  had  confidingly  entrusted  their  political  des- 
tiny had  ignored  the  sacred  character  of  the  trust,  sought 
to  wreak  their  vengeance  against  the  system  which  they 
had  abused.  The  politicians,  eager  to  .win  their  favor, 
dared  not  denounce  the  people  for  their  neglect.  Instead 
they  sought  the  public  gratitude  by  providing  spiritual 
alibis  for  those  whose  indifference  had  permitted  the 
prostitution  of  political  power.  Impliedly  admitting  the 
failure  of  the  public  to  select  representatives  worthy  of 
public  trust,  they  advanced  the  argument  that  this  same 
public  could  themselves  perform  the  technical  duties  of 
government  better  than  they  could  select  public  servants, 
competent  for  the  task.  They  could  doctor  their  own  ills 
with  better  results  than  could  be  obtained  by  selecting 
competent  practitioners.  They  ascribed  the  evils  that  all 
forward-looking  citizens  had  deplored  to  the  representa- 
tive character  of  our  government,  rather  than  to  popular 
indifference  and  the  absence  of  real  opinion.  Their  pro- 
posals were  to  supplement  the  machinery  of  representa- 
tive government  with  the  various  devices  of  direct  democ- 
racy. The  real  desire  of  the  multitude  was  for  the  larger 


REPRESENTATIVE  GOVERNMENT  47 

life  and  opportunities  that  could  be  secured  only  by  the 
highest  technical  skill  in  solving  the  problems  of  modern 
life,  backed  by  the  sustained  interest  of  an  intelligent  and 
awakened  public.  When  the  people  demanded  substance, 
the  politicians  gave  them  the  form;  when  the  public 
wanted  bread,  they  received  a  stone. 

Since  this  period,  much  improvement  has  been  made, 
but  there  is  little  evidence  that  it  has  been  due  to  the 
change  in  governmental  forms.  There  is  ample  evidence 
to  the  effect,  however,  that  it  has  resulted  from  an  awk- 
ened  public  interest,  which,  though  badly  misdirected, 
has  borne  splendid  fruit. 

This  misdirection  of  the  public  interest  and  desire  was 
due  largely  to  the  failure  to  comprehend  the  organic  rela- 
tion between  public  opinion  and  popular  government.  The 
demagogues  persuaded  the  people  that  the  vital  issue 
was  "shall  the  people  rule,"  and  that  they  could  only  rule 
effectively  when  they  ruled  directly.  The  real  problems 
were  as  previously  indicated,  uhow  can  the  people  rule 
in  order  to  rule  the  most  effectively,"  and  how  can  the 
improvement  of  public  opinion  be  best  achieved?  This 
last  question  we  have  hastily  sketched  in  the  preceding 
chapter,  and  the  various  aspects  of  the  first  problem  will 
receive  attention  throughout  the  remainder  of  the  volume. 

Since  popular  government  is  that  in  which  public  opin- 
ion prevails,  it  follows  that  the  limitations  of  the  former 
are  to  be  found  in  the  inherent  nature  of  the  latter.  An 
inquiry  into  the  most  efficient  way  for  a  people  to  rule 
themselves  involves,  therefore,  a  careful  analysis  and 
classification  of  the  different  functions  that  the  people 
must  perform,  and  an  accurate  estimate  of  the  possibili- 
ties of  public  opinion  as  applied  to  the  performance  of 
such  functions. 


48  POPULAR  GOVERNMENT 

These  functions  may,  for  practical  convenience,  be  di- 
vided into  three  groups:  the  formulation  or  choice  of  a 
public  policy  when  it  involves  highly  technical  and  scien- 
tific'knowledge  or  skill;  the  accurate  determination  of 
the  many  questions  of  fact  upon  which  the  successful  ad- 
ministration of  public  affairs  must  necessarily  depend; 
and  finally  the  choice  or  formulation  of  a  public  policy 
which  involves  only  simple  questions  of  fact,  the  exercise 
of  ordinary  judgment,  or  the  expression  of  a  popular  de- 
sire. Most  of  the  important  functions  of  government 
may  be  brought  within  these  three  categories. 

In  the  formulation  or  choice  of  technical  policies  which 
constitutes  one  of  the  most  important  groups  of  public 
problems  that  we  have  today,  we  find  that  public  opin- 
ion has  very  distinct  and  obvious  limitations.  Consider, 
for  example,  the  formulation  of  a  policy  regarding  indus- 
trial disease.  The  drafting  of  a  statute  to  meet  this  very 
vital  problem  involves  a  technical  knowledge  of  the  vari- 
ous occupational  diseases,  the  conditions  that  produce 
them,  the  practical  manufacturing  and  mechanical  proc- 
esses that  are  involved,  and  the  striking  of  that  happy 
balance  of  convenience  where  the  maximum  of  prevention 
consistent  with  the  practical  manufacturing  problems  is 
secured.  Since  this  involves  many  and  not  merely  one 
industry  and  one  kind  of  disease,  the  bewildering  com- 
plexities that  must  confront  those  who  seek  a  solution  of 
the  problem  become  apparent.  And  this  is  saying  nothing 
of  the  technical  legal  and  administrative  problems  that 
are  involved.  For  it  is  a  well-known  problem  that  many 
laws,  finely  conceived  as  to  their  purpose  and  content, 
have  failed  because  of  their  failure  to  observe  sound  ad- 
ministrative principles,  or  to  be  translated  faithfully 
into  the  technicalities  of  legal  language.  It  becomes  obvi- 
ous that  such  problems  require  for  their  solution  a  careful 


REPRESENTATIVE  GOVERNMENT  49 

process  of  the  division  of  labor  between  several  classes 
of  experts,  each  one  of  which  makes  his  contribution  to- 
ward the  realization  of  the  common  end.  The  medical 
scholar  who  has  specialized  in  industrial  diseases,  the 
practical  manufacturing  expert,  the  mechanical  engineer, 
the  legislative  draughtsman,  and  the  expert  in  the  science 
of  administration,  must  all  cooperate  in  the  choice  of  a 
sound  policy  and  its  translation  into  an  effective  statute. 

How  can  public  opinion  function  the  most  effectively  in 
the  choice  and  formulation  of  such  a  policy?  Is  a  real 
opinion  possible  in  the  premises?  Could  such  a  problem 
be  effectively  solved  in  a  New  England  town  meeting  or 
by  the  modern  initiative  and  referendum?  The  answer 
to  these  questions  depends  upon  the  nature  of  public  opin- 
ion. To  be  real  opinion,  we  have  seen  that  the  belief  must 
originate  with  accepted  authority  and  harmonize  with  the 
established  convictions  of  the  public,  or  it  must  be  a  re- 
sult of  some  rational  process  of  investigation  and  thought. 
We  have  few  authorities  who  would  be  generally 
accepted  as  competent  to  endorse  intelligently  such  a 
policy,  and  even  if  we  had,  there  is  an  utter  want 
of  convictions  among  the  people  in  regard  to  the  funda- 
mental problems  involved.  There  are  no  popular  convic- 
tions regarding  the  nature  and  conditions  of  lead  poison- 
ing, the  mechanical  and  manufacturing  problems  involved 
in  those  industries  where  lead  poisoning  is  found,  sound 
principles  of  public  administration,  or  the  technical  de- 
tails of  legislative  draughtsmanship.  In  the  absence  of 
competent  and  accepted  authority  on  the  one  hand,  and  of 
popular  convictions  regarding  the  matters  involved  upon 
the  other,  it  seems  more  than  obvious  that  there  can  be 
no  real  opinion  upon  the  question,  save  it  be  as  a  result 
of  a  rational  process  of  thought  and  investigation. 

A  moment's  contemplation  of  the  many  technical  as- 


50  POPULAR  GOVERNMENT 

pects  of  the  problem,  involving  several  distinctly  different 
branches  of  specialized  knowledge,  and  the  further  fact 
of  the  popular  incapacity  to  comprehend  intelligently  the 
technical  legal  language  in  which  such  a  policy  must  be 
expressed  if  it  is  to  be  effective,  can  leave  one  in  little 
doubt  that  upon  such  a  question  a  real  opinion  as  to  the 
formulation  of  the  policy,  or  the  choice  of  a  wise  one 
from  several  different  competing  policies  that  might  be 
submitted,  is  wholly  impossible.  It  is  inconceivable  that 
the  great  majority  of  the  public  could  obtain  the  command 
of  enough  of  the  technical  facts,  or  access  to  enough  com- 
petent authorities,  or  sufficiently  comprehend  the  legal 
and  administrative  difficulties  involved,  to  formulate  a 
real  opinion  of  their  own. 

To  leave  such  a  matter  to  a  direct  popular  choice,  or 
to  entrust  the  selection  of  one  from  several  policies  to  a 
mere  "counting  of  hands"  is  not  the  enthronement  of  pub- 
lic opinion,  but  the  abandonment  of  a  vitally  important 
problem  to  the  fate  of  popular  caprice  or  passing  fancy. 
This  is  to  place  great  power  into  the  hands  of  the  so- 
called  "special  interests"  who  might  have  a  selfish  desire 
for  the  defeat  of  an  effective  policy.  They  would  have  the 
means  and  the  motive  to  employ  the  advertiser's  art  for 
the  creation,  by  suggestion,  of  a  popular  impression 
against  any  step  that  might  tend  to  be  effective  in  the 
solution  of  the  problem.  For  when  the  people  are  asked 
to  pass  judgment  upon  matters  entirely  outside  of  the 
range  of  their  experience,  knowledge,  or  convictions,  they 
are  at  the  mercy  of  the  hired  makers  of  publicity. 

But  this  does  not  mean  that  public  opinion  cannot  con- 
trol in  matters  of  technical  policy.  It  merely  means  that 
in  such  cases  public  opinion  cannot  function  directly  and 
in  advance  of  popular  experience  in  regard  to  the  pro- 
posed reform.  It  may  nevertheless  function  effectively 


REPRESENTATIVE  GOVERNMENT  51 

in  either  of  two  ways,  either  by  passing  upon  the  desir- 
ability of  the  results  achieved  by  the  proposed  policy  after 
a  period  of  actual  operation,  or  by  the  choice  of  political 
leaders  to  whose  wisdom,  capacity,  and  fidelity  the  fram- 
ing of  such  a  policy  can  be  safely  entrusted.  In  the  lat- 
ter process  the  work  of  the  leaders  would,  of  course,  be 
checked  up  in  the  light  of  the  actual  results  achieved. 

The  first  process  necessarily  involves  the  second,  since 
if  the  people  do  not  frame  their  own  policies  or  choose 
them  in  advance,  then  in  a  popular  government  they  must 
select  those  who  will  choose  and  administer  their  policies. 
We  will,  therefore,  first  consider  the  choice  of  leaders. 
While  a  public  opinion  is  generally  impossible  on  the 
question  of  technical  public  policies,  yet  it  is  equally  clear 
that  we  generally  have  a  real  public  opinion  in  regard  to 
the  great  political  leaders.  The  people  soon  learn  to  form 
an  estimate  of  them  through  what  they  learn  of  their 
public  record,  their  achievement,  their  public  addresses, 
their  sympathies,  and  their  point  of  view.  They  will  read 
and  inform  themselves  to  some  extent  regarding  great 
personalities  when  they  will  decline  to  take  any  interest 
in  technical  issues.  They  find  that  this  or  that  leader's 
tendencies,  attitude,  and  point  of  view,  on  the  whole, 
harmonize  or  violate  their  own  convictions,  sympathies, 
or  philosophy,  and  a  real  opinion  is  created. 

This  does  not  mean  that  a  real  opinion  exists  in  re- 
gard to  every  candidate  submitted  to  popular  approval 
at  the  polls.  For  under  our  unfortunate  system,  people 
are  required  to  vote  for  insignificant  public  officers,  many 
of  whom  are  purely  administrative  or  ministerial,  who 
are  not  in  any  way  leaders,  and  in  regard  to  whom  it  is 
useless  to  suppose  that  a  real  opinion  could  exist.  We  are 
here  considering  only  the  dominant  party  leaders  and  the 
most  powerful  officers,  whose  position  commands  the  in- 


52  POPULAR  GOVERNMENT 

terest  and  challenges  the  attention  of  the  average  voter, 
and  who,  in  the  last  analysis,  exercise  the  controlling 
power  in  the  choice  and  formulation  of  public  policy. 

"The  sentiment  of  the  people  is  most  readily  and  suc- 
cessfully exercised  in  their  judgment  of  persons.  *  *  *  The 
plainest  men  have  an  inbred  shrewdness  in  judging  human 
nature  which  makes  them  good  critics  of  persons  even 
when  impenetrable  to  ideas.  This  shrewdness  is  fostered 
by  a  free  society,  in  which  every  one  has  to  make  and  hold 
his  own  place  among  his  fellows ;  and  it  is  used  with  much 
effect  in  politics  and  elsewhere  as  a  guide  to  sound  ideas. 

"Some  years  ago,  for  instance,  occurred  a  national  elec- 
tion in  which  the  main  issue  was  whether  silver  should  or 
should  not  be  coined  freely  at  a  rate  much  above  its  bul- 
lion value.  Two  facts  were  impressed  upon  the  observer 
of  this  campaign :  first,  the  inability  of  most  men,  even  of 
education,  to  reason  clearly  on  a  somewhat  abstract  ques- 
tion lying  outside  of  their  daily  experience,  and,  second, 
the  sound  instinct  which  all  sorts  of  people  showed  in 
choosing  sides  through  leadership.  The  flow  of  nonsense 
on  both  parts  was  remarkable,  but  personality  was  the 
determining  influence.  It  was  common  to  hear  men  say 
that  they  should  vote  for  or  against  the  proposition  be- 
cause they  did  or  did  not  trust  its  conspicuous  advocates; 
and  it  was  evident  that  many  were  controlled  in  this  way 
who  did  not  acknowledge  it,  even  to  themselves.  The  gen- 
eral result  was  that  the  more  conservative  men  were 
united  on  one  side,  and  the  more  radical  and  shifting 
elements  on  the  other.  *  *  * 

"On  this  shrewd  judgment  of  persons  the  advocate  of 
democracy  chiefly  grounds  his  faith  that  the  people  will 
be  right  in  the  long  run."1 

JC.   H.   Cooley,  Social  Organisation,  pp.  142-3. 


REPRESENTATIVE  GOVERNMENT  53 

Not  only  is  a  public  opinion  possible  in  the  choice  of 
leaders,  but  it  is  also  much  more  reliable  than  opinions 
that  might  possibly  be  formed  regarding  technical  poli- 
cies. If  one  becomes  ill  in  a  strange  community,  he  does 
not  care  what  the  opinion  of  the  community  may  be  as 
to  the  diagnosis  of  his  illness  or  the  proper  remedy,  but 
the  opinion  of  the  community  as  to  who  is  a  competent 
physician  upon  whose  professional  services  one  may  rely 
with  confidence,  he  unhesitatingly  accepts.  Nor  is  that 
opinion  based  upon  an  intimate  knowledge  of  the  physi- 
cian's technique,  or  of  the  different  scientific  theories 
which  he  accepts  and  about  which  the  public  is  generally 
in  ignorance,  but  is  based  upon  the  results  that  he  has 
achieved  in  the  community,  and  upon  their  estimate  of  his 
intellectual  ability,  his  character,  and  his  personality. 
While  "quacks"  may  temporarily  mislead,  in  the  long 
run  the  judgment  of  the  community  is  surprisingly  just 
and  accurate.  Were  it  not  so  there  would  be  little  stim- 
ulus and  incentive  for  the  able,  conscientious,  and  scien- 
tific practitioner.  It  does  not  seem  an  unfair  analogy  to 
suggest  that  just  as  intelligent  people  have  found  the  best 
solution  of  their  personal  problems  of  health  in  the  wise 
choice  of  those  most  competent  to  serve,  testing  the 
validity  of  their  judgment  by  the  results  achieved,  so  the 
public  may  hope  for  the  best  accomplishments  in  the 
choice  of  technical  policies  by  bringing  their  opinion  to 
bear  upon  the  choice  of  competent  leaders,  whose  ulti- 
mate fate  will  be  determined  by  the  public  according  to 
the  benefits  achieved.  Here  we  can  establish  a  point  of 
contact  between  the  people  and  the  government  where  a 
real  opinion  can  obtain,  and  where  it  can  function  with 
maximum  efficiency  and  beneficence. 

What  the  undistinguished  masses  of  the  people  may, 
this  way,  contribute  to  the  thought  of  the  nation  is 


54  POPULAR  GOVERNMENT 

aptly  summed  up  by  Professor  Cooley.  "They  contrib- 
ute sentiment  and  common  sense,  which  gives  momentum 
and  general  direction  to  progress,  and,  as  regards  par- 
ticulars, finds  its  way  by  a  shrewd  choice  of  leaders.  It  is 
into  the  obscure  and  inarticulate  sense  of  the  multitude 
that  the  man  of  genius  looks  in  order  to  find  those  vital 
tendencies  whose  utterance  is  his  originality.  As  men  in 
business  get  rich  by  divining  and  supplying  a  potential 
want,  so  it  is  a  great  part  of  all  leadership  to  perceive  and 
express  what  the  people  have  already  felt."1 

The  function  of  public  opinion  in  passing  upon  the  re- 
sults achieved  is  now  too  obvious  to  require  extended 
comment.  It  may  be  argued  that  to  delay  public  opinion 
until  there  has  been  opportunity  for  it  to  judge  of  results 
achieved  involves  dangerous  and  hazardous  loss  of  time. 
To  this  three  considerations  should  be  urged.  In  the  first 
place  the  public  is  given  considerable  protection  when  it 
is  given  the  choice  of  leaders  who  are  to  formulate  and 
determine  the  policy  for  them.  This  is  the  method  uni- 
versally employed  by  private  individuals  in  attacking 
their  individual  problems  and  it  is  in  this  form  that  public 
opinion  yields  its  most  reliable  and  beneficent  results. 
Secondly,  no  real  opinion  is  possible  on  the  question  until 
it  can  be  judged  by  results,  and  to  attempt  popular  con- 
trol without  public  opinion  is  to  subject  our  national  prog- 
ress to  the  hazards  of  caprice  and  fancy.  Thirdly,  it  is 
only  when  a  technical  policy  has  secured  results  and  pub- 
lic opinion  operates  upon  them  that  it  has  a  basis  of  in- 
telligent judgment.  This  last  point  is  well  illustrated  by 
the  case  of  the  Wisconsin  income  tax.  The  tax  when  first 
enacted  and  enforced  met  with  widespread  and  hostile 
opposition,  and  undoubtedly  would  have  been  repealed 
by  popular  vote  had  it  been  subject  to  the  initiative  and 

*C.  H.  Cooley,  Social  Orgamaation,  p.  148. 


REPRESENTATIVE  GOVERNMENT  55 

referendum  device.  The  great  majority  of  the  people  had 
never  kept  books,  and  the  making  out  of  the  returns 
seemed  an  unwarranted  burden  and  an  unjustifiable  inter- 
ference with  private  business.  The  press  was  quick  to 
capitalize  the  temporary  prejudice  and  opposition  that 
was  created.  But  after  several  years  of  operation,  during 
which  the  public  have  had  an  opportunity  to  judge  it  ac- 
cording to  its  results  achieved,  it  seems  equally  obvious 
that  to-day  public  sentiment  is  strongly  in  its  favor  and  it 
is  now  backed  by  a  real  opinion  that  is  both  effective  and 
intelligent. 

It  thus  seems  that  in  the  first  class  of  public  functions, 
the  selection  and  formulation  of  technical  policies,  the 
devices  of  direct  democracy  must  fail,  in  so  far  as  they 
attempt  to  give  expression  to  public  opinion  directly  and 
in  advance,  for  in  such  matters  public  opinion  can  only 
function  in  the  choice  of  leaders  or  upon  the  results  of 
the  policy,  and  furthermore,  it  is  only  when  thus  func- 
tioning that  public  opinion  becomes  reliable,  intelligent, 
and  constructive. 

We  come  now  to  the  second  class  of  functions,  viz.,  the 
accurate  determination  of  those  questions  of  fact  upon 
which  the  successful  administration  of  public  affairs  must 
necessarily  depend.  The  appointment  of  ordinary  admin- 
istrative and  ministerial  officers,  as  well  as  the  appoint- 
ment of  experts  for  the  public  service,  are  essentially 
questions  of  fact,  viz.,  who  is  competent  for  the  duties 
involved?  Important  questions  of  both  executive  and  leg- 
islative policy  depend  frequently  upon  questions  of  fact. 
Whether  a  board  of  health  should  order  all  persons  vac- 
qinated  is  dependent  upon  the  facts  involved.  In  the  de- 
termination of  public  utility  rates,  in  fixing  tariff  schedules, 
in  selecting  the  best  methods  of  public  sanitation,  in  ar- 
ranging the  details  of  a  public  utility  franchise,  and  in 


56  POPULAR  GOVERNMENT 

innumerable  like  problems,  intelligent  action  is  only  pos- 
sible on  the  basis  of  the  accurate  determination  of  the 
material  facts. 

It  requires  no  keen  analysis  of  the  situation  to  see  very 
clearly  that  public  opinion  cannot  function  directly  on  this 
class  of  public  questions,  especially  where  the  question 
lies  entirely  within  the  domain  of  specialized  or  technical 
knowledge,  as  is  so  frequently  the  case.  Nowhere  is  the 
impotence  of  mere  popular  majorities,  which  do  not  rep- 
resent real  public  opinion,  better  illustrated  than  right 
here.  A  popular  vote  of  the  state  as  to  whether  a  certain 
person  is  an  efficient  state  bacteriologist,  or  as  to  what  is 
the  most  efficient  system  of  accounting  for  a  given  depart- 
ment, or  as  to  what  is  the  best  way  to  fight  the  epidemic 
of  influenza,  would  be  an  obvious  absurdity.  Carlyle 
pointed  out  the  futility  of  the  ballot  on  such  occasions 
where  he  declared  that  "Your  ship  cannot  double  Cape 
Horn  by  its  excellent  plans  of  voting.  The  ship  may  vote 
this  and  that,  above  decks  and  below,  in  the  most  har- 
monious exquisitely  constitutional  manner:  the  ship,  to 
get  around  Cape  Horn,  will  find  a  set  of  conditions  al- 
ready voted  for,  and  fixed  with  adamantine  rigor  by  the 
ancient  Elemental  Powers,  who  are  entirely  careless 
how  you  vote.  If  you  can,  by  voting  or  without  voting, 
ascertain  those  conditions,  and  valiantly  conform  to 
them,  you  will  get  round  the  Cape;  if  you  cannot,  the 
ruffian  Winds  will  blow  you  ever  back  again."1 

Then  what  becomes  of  popular  government  in  such 
instances  ?  Must  we  choose  between  the  evils  of  bureau- 
cratic tyranny  and  the  absurdities  of  direct  majorities? 
There  are  those  who  seem  to  have  found  no  method  of 
escape  from  this  dilemma.  A  little  reflection  will,  how- 
ever, indicate  that  there  are  some  very  effective,  though 

^Latter  Day  Pamphlets,  No.  1.    The  Present  Time,  pp.  12,  14. 


REPRESENTATIVE  GOVERNMENT  57 

indirect,  methods  in  which  public  opinion  may  be  em- 
ployed. The  first  method  in  which  public  opinion  may 
function  in  the  solution  of  such  problems  is  in  choice  of 
methods  by  which  the  question  of  fact  should  be  deter- 
mined. President  Lowell  has  observed  that  "it  does  not 
follow  that,  because  people  have  no  true  opinion  on  a 
question,  they  have  no  opinion  on  the  method  by  which 
it  ought  to  be  decided.  They  may  be  incapable,  and  recog- 
nize that  they  are  incapable,  of  forming  an  opinion  about 
an  intricate  point  of  law,  or  about  the  guilt  of  a  man  ao- 
cused  of  crime  when  the  evidence  is  conflicting;  and  yet 
they  may  have  a  very  definite  opinion  that  the  matter 
shall  be  decided  by  a  court  of  law,  and  that  its  decision 
shall  be  enforced.  The  public  may  have  no  opinion  about 
dealing  with  an  epidemic,  and  yet  it  may  have  a  very 
strong  opinion  that  it  ought  to  be  combated  by  physicians 
who  have  proved  their  competence."1 

Since  the  method  employed  in  the  settlement  of  techni- 
cal questions  of  fact  is  of  paramount  importance,  and 
since  a  real  public  opinion  regarding  method  very  com- 
monly exists,  it  is  evident  that  public  opinion  has  an  im- 
portant role,  where  the  political  organization  is  such  that 
its  operation  is  restricted  to  the  methods  to  be  employed. 

The  second  way  in  which  public  opinion  may  function 
in  determining  questions  of  fact  is  in  the  choice  of  public 
leaders  who  may  be  entrusted  with  the  selection  of  the 
officers  and  experts,  and  the  choice  of  methods.  The 
superior  facilities  of  public  opinion  for  the  choice  of  lead- 
ers as  compared  with  the  choice  of  issues  and  principles 
has  been  already  sufficiently  discussed.  It  merely  needs 
to  be  noted  that  through  the  choice  of  efficient  leaders 
the  public  may  exercise  a  potent  power  in  securing  accu- 
rate, dependable  judgments  on  questions  of  fact. 

^Public  Opinion  and  Popular  Government,  pp.  25-6. 


58  POPULAR  GOVERNMENT 

The  third  group  of  public  functions  is  the  choice  or 
formulation  of  public  policies  which  involve  only  simple 
questions  of  fact,  the  exercise  of  ordinary  judgment  or 
common  sense,  or  the  expression  of  popular  desire.  Liquor 
prohibition  laws,  soldier  bonus  laws,  bond  issues  exceed- 
ing public  debt  limits,  and  similar  questions  are  typical  of 
this  class  of  problems.  Since  these  are  mainly  questions 
upon  which  most  people  have  convictions,  or  which  in- 
volve processes  of  reasoning  and  questions  of  fact  well 
within  the  range  of  the  average  person's  interests  and 
experience,  a  real  public  opinion  in  regard  to  them  gen- 
erally exists.  The  formulation  of  such  policies  in  an  effec- 
tive and  satisfactory  way  frequently  requires  technical 
skill  and  experience,  but  when  once  formulated,  public 
opinion  may  operate  upon  them  directly  and  effectively. 
Referendum  votes  on  such  issues  are  likely  to  represent 
true  opinion,  and  may,  therefore,  in  such  instance,  be  re- 
garded as  real  instruments  of  popular  government. 

Obviously  the  public  may  also  exercise  its  control  in- 
directly through  the  choice  of  political  leaders  and  repre- 
sentatives, but  there  are  some  cases  where  direct  action 
would  seem  preferable.  Where  a  proposed  policy,  com- 
ing within  this  class,  is  one  which  will  invoke  a  hostile 
resistance,  it  is  important  that  it  should  not  become  law 
until  a  clear  public  opinion  has  been  mobilized  in  its  sup- 
port. For  unless  this  is  done  it  will  not  be  enforced.  The 
enforcement  of  such  a  policy  requires  a  much  stronger 
public  opinion  behind  it  than  is  required  for  its  mere 
enactment.  This  is  especially  important  in  such  matters 
as  liquor  prohibition  laws,  where  the  lax  enforcement  has 
been  notorious  and  its  evil  effects  disastrous.  To  the 
extent  that  direct  action  will  prevent  such  catastrophies, 
it  is  not  only  effective  but  desirable. 


REPRESENTATIVE  GOVERNMENT  59 

The  foregoing  discussion  prepares  the  way  for  the 
consideration  of  the  question  of  the  duty  of  a  popular 
representative.  In  his  official  conduct,  should  he  act  ac- 
cording to  his  own  judgment  and  convictions,  or  should 
he  defer  to  the  wishes  and  opinion  of  his  constituents? 
Should  he  be  a  mere  delegate  to  register  the  opinion  of 
his  district,  or  should  he  be  a  representative,  exercising 
his  judgment  in  behalf  of  the  people  he  represents? 
There  are  three  aspects  of  this  problem,  the  first  dealing 
with  campaign  promises  or  party  pledges.  Common  hon- 
esty would  require  that  a  man  fulfill  his  personal  pledges, 
and  those  of  the  party  that  he  represents.  But  this  does 
not  dispose  of  much  of  the  difficulty,  since  relatively  few 
questions  are  covered  by  campaign  promises  or  party 
pledges. 

The  second  aspect  of  this  problem  is  concerned  with 
the  party  caucus.  Should  a  representative  vote  his  own 
convictions  or  abide  by  the  judgment  of  the  party  caucus? 
This  will  necessarily  depend  upon  the  extent  to  which  the 
theory  of  party  responsibility  is  adopted.  In  England 
where  this  theory  is  frankly  adopted,  the  caucus  generally 
controls,  while  in  America  much  greater  liberty  is  left 
to  the  individual  judgment.  With  the  rapid  increase  in 
the  technical  and  complex  character  of  our  government, 
the  theory  of  party  responsibility  is  becoming  one  of  in- 
creasing importance,  as  the  only  effective  way  in  which 
public  opinion  may  function  in  such  technical  matters  as 
foreign  policy,  tariff  legislation,  and  the  coordination  of 
the  legislative  and  administrative  functions  of  govern- 
ment. It  is  extremely  difficult  to  comprehend  how  a  na- 
tion-wide public  opinion  can  function  in  the  complex 
problems  of  the  federal  government  without  the  doctrine 
of  party  responsibility  definitely  established.  This  means 
the  power  of  the  party  caucus  must  increase. 


60  POPULAR  GOVERNMENT 

The  third  aspect  of  this  problem  is  the  question  of 
instructing  the  representatives  and  whether  they  should 
follow  such  instructions  or  follow  their  individual  judg- 
ment. Much  will  depend  upon  the  manner  in  which  the 
instruction  is  given.  Some  states  have  what  are  called 
public  opinion  referendums,  in  which  the  people  may  vote 
upon  a  proposed  policy,  not  with  the  purpose  of  enacting 
it  into  law,  but  merely  for  the  purpose  of  advising  their 
representatives.  If  the  policy  is  one  upon  which  a  public 
opinion  is  possible,  and  the  vote  seems  to  indicate  that  it 
represents  a  real  opinion,  there  would  seem  to  be  good 
grounds  to  argue  that  the  representative  should  be  bound 
thereby.  But  if  it  is  one  of  those  questions  upon  which  a 
public  opinion  is  not  possible,  the  argument  would  seem 
equally  strong  that  the  representative  should  vote  his  own 
convictions.  A  popular  vote  upon  a  subject  upon  which  a 
public  opinion  does  not  exist  is  merely  leaving  its  deter- 
mination to  the  vagaries  of  popular  fancy,  or  what  is 
still  worse,  to  the  clever  manipulation  of  those  special 
interests  which  have  a  selfish  motive  in  controlling  the 
result  through  the  art  of  publicity  and  suggestion. 

Where  there  is  no  formal  and  effective  manner  of  reg- 
istering public  opinion,  but  it  is  left  to  the  mere  voluntary 
action  of  the  individual,  the  doctrine  of  instruction  be- 
comes much  more  difficult  to  apply,  and  much  more  capa- 
ble of  abuse.  It  rarely  happens  that  any  considerable  num- 
ber of  the  people  take  sufficient  interest  in  public  affairs 
to  indicate  to  their  representatives  their  opinion  upon 
pending  issues.  Any  instructions  thus  given  consequently 
represent  but  a  minute  fraction  of  the  population.  More- 
over, those  that  are  represented  are  more  likely  to  be 
those  whose  personal  or  selfish  interests  dictate  their 
opinion,  rather  than  those  whose  only  interest  is  in  the 
public  weal.  Former  Senator  Husting  of  Wisconsin  testi- 


REPRESENTATIVE  GOVERNMENT  61 

fied  that  during  the  months  previous  to  America's  entry 
into  the  war,  the  German-American  Alliance  sent  thou- 
sands of  telegrams  urging  a  conciliatory  policy  toward 
Germany,  until  it  appeared  that  such  was  the  overwhelm- 
ing demand  of  his  constituents.  Those  whose  only  inter- 
est was  the  general  welfare  of  America  very  rarely  ex- 
pressed to  him  their  beliefs,  although,  upon  investigation, 
he  was  convinced  that  they  were  in  the  vast  majority.  A 
governor  of  a  Western  state  once  told  the  author  of  an 
incident  illustrating  the  same  idea.  He  was  fighting  for 
the  enactment  of  a  measure  regulating  the  liquor  traffic. 
He  had  his  office  force  tabluate  the  letters,  phone  calls> 
and  telegrams  according  to  whether  they  were  for  or 
against  the  legislation.  The  results  were  about  twenty  to 
one  against  the  legislation,  although  the  governor  had 
been  overwhelmingly  elected  upon  a  "dry"  platform.  Un- 
der such  a  system  of  instruction,  the  determined  organized 
minority,  dominated  by  selfish  and  even  sordid  motives, 
occupies  a  position  of  vast  strategic  strength. 

Moreover,  regarding  complicated  and  technical  ques- 
tions, it  is  reasonable  to  suppose  that  the  representative, 
who  is  giving  his  full  time  to  the  study  of  these  problems 
and  the  method  of  their  solution,  will  devote  greater  in- 
terest and  a  more  intelligent  understanding  to  the  solu- 
tion of  the  problems  than  will  the  great  bulk  of  the  pub- 
lic who  view  the  vast  majority  of  public  problems  both 
with  indifference  and  a  lack  of  adequate  background.  Un- 
der these  conditions,  the  overwhelming  weight  of  the 
evidence  is  against  the  doctrine  of  instruction  and  in  favor 
of  the  representative  acting  in  the  interest  of  the  com- 
munity, according  to  the  dictates  of  his  own  judgment 
and  convictions.  The  public  can  hold  him  responsible  for 
results  obtained  much  more  intelligently  and  effectively 
than  they  can  direct  the  details  of  his  various  duties. 


62  POPULAR  GOVERNMENT 

From  an  analysis  of  the  functions  of  modern  govern- 
ment and  an  examination  into  the  nature  and  possibilities 
of  public  opinion,  it  seems  clear  that  in  the  large  majority 
of  cases  popular  control  can  be  effective  and  beneficent 
only  when  applied  through  the  indirect  methods  of  rep- 
resentative government.  It  is  in  the  choice  of  leaders  that 
the  voice  of  the  multitude  becomes  the  most  articulate  and 
intelligent;  it  is  only  in  evaluating  the  results  achieved 
that  they  may  have  a  real  opinion  regarding  the  merits 
of  technical  legislation;  and  it  is  only  in  the  choice  of 
methods  that  they  can  make  contribution  to  the  accurate 
determination  of  questions  of  fact.  It  is  in  the  relatively 
small  class  of  problems  which  involve  only  matters  of  gen- 
eral information  and  common  sense  that  direct  democ- 
racy can  either  register  public  opinion  or  secure  intelligent 
results. 

Professor  Giddings  has  recently  given  a  striking  and 
statesmanlike  summary  of  the  relations  of  direct  democ- 
racy to  representative  government.  "While  no  way  has 
been  found,  or  is  likely  to  be  found,  to  make  a  democracy 
fool  proof,  experience  indicates  that  the  best  working 
system  is  a  combination  of  direct  democracy  with  repre- 
sentative government.  The  town  meeting  has  had  an 
honorable  record.  It  has  been  a  good  school.  In  the 
commonwealths  great  issues  are  discussed  and  thought 
about  by  all  citizens,  and  are  most  wisely  decided  by  popu- 
lar vote.  But  for  legislation  in  general  and  for  efficient 
administration,  some  degree  of  expertness  is  required. 
Positive  talent  is  called  for,  and  a  politically  organized 
population  makes  a  fatal  blunder  when  it  does  not  dele- 
gate these  duties  to  selected  men;  a  truth  that  always  has 
been  recognized  in  the  town  meeting  itself  which,  while 
voting  on  the  particular  items  of  business  set  forth  in  the 


REPRESENTATIVE  GOVERNMENT  63 

warrant,  has  also  elected  'selectmen'  to  carry  out  the 
popular  decisions. 

"Nothing  would  so  improve  the  quality  of  American 
politics  in  these  days  of  unrest  and  experiment  as  a  sound 
understanding  of  the  nature  of  representative  govern- 
ment and  the  common  sense  reasons  for  it.  The  problems 
of  legislation  and  public  policy  were  never  so  difficult  as 
now.  They  are  of  baffling  complexity,  while  at  the  same 
time  their  solution  is  imperative.  They  involve  enormous 
financial  risks  and  burdens.  They  call  for  the  most  deli- 
cate adjustments  of  social  rights  and  duties.  They  include 
the  tremendous  interests  of  health  and  education,  of  pros- 
perity and  peace.  They  demand,  therefore,  that  before 
the  public  by  referendum  or  otherwise  gives  its  final  ver- 
dict upon  them,  the  most  patient  and  intelligent  study  and 
the  fullest  discussion  be  given  them.  This  is  equivalent 
to  saying  that  they  call  for  initial  handling  by  men  of 
demonstrated  ability,  selected  from  the  great  body  of  citi- 
zens and  entrusted  with  both  discretion  and  responsibil- 
ity."1 

1F.  H.  Giddings,  "Understanding  Our  Government"  in  Independent, 
Vol.  101,  p.  433. 


SUGGESTIVE  QUESTIONS  FOR 

CHAPTER  III 

Q)  "Public  Problems  are  increasing  in  complexity  more 
rapidly  than  popular  education  is  preparing  the  public 
with  the  technical  information  to  solve  them."  If  the 
above  statement  is  correct,  does  that  mean  the  end  of 
popular  government? 

(ol)  "The  referendum  is  a  desirable  reform  because  it 
is  more  democratic  than  the  existing  system."  Criticize 
thi^argument. 

(>IIJ).  What  general  considerations  should  prevail  in 
determining  whether  any  particular  reform  should  be 
adopted? 

IV.  What  is  the  real  purpose  of  government,  to  pre- 
serve democracy  or  to  see  that  justice  shall  prevail  among 
the  people?  To  what  extent  and  in  what  sense  are  the 
two  purposes  identical? 

(^  "Those  who  oppose  the  referendum  are  opposed 
to  democracy."  Criticize  this  statement. 

VI.  How  far  should  our  system  of  representative  gov- 
ernment be  supplemented  by  the  instruments  of  direct 
democracy  ? 

(/v  II)  When  a  man  has  the  reputation  of  being  the  best 
lawyer  in  the  community,  upon  what  basis  of  judgment  is 
the  opinion  of  the  community  formed?  Do  they  so  re- 
gard him  because  his  opinion  of  the  law  coincides  with 
theirs? 

VIII.  How  much  reliance  may  be  placed  in  the  com- 
munity's judgments  as  to  the  efficiency  of  a  physician? 
Why? 

64 


SUGGESTIVE  QUESTIONS  63 

"For  a  district  to  instruct  its  representative  how 
he  should  vote  on  technical  matters  would  be  just  as  wise 
as  for  a  patient  to  instruct  a  physician  how  to  diagnose 
hisu?wn  case."  Is  the  analogy  accurate?  Why? 

/X)  "If  representatives  allow  themselves  to  be  bound 
by  the  party  caucus,  that  means  the  end  of  popular  gov- 
ernment and  the  substitution  of  party  tyranny."  Criti- 
cize the  statement.  Has  it  worked  that  way  in  England? 


CHAPTER  IV 

THE  DIRECT  PRIMARY  AND  THE  STATE 
NOMINATING  CONVENTION 

THE  issue  of  representative  government  against  direct 
democracy  was  strikingly  presented  in  the  recent  growth 
of  the  direct  primary  and  the  agitation  against  the  nomi- 
nating convention.  Originating  in  the  outburst  of  histri- 
onic statesmanship  that  sought  universal  panaceas  in  the 
devices  of  direct  democracy,  it  sought  popular  support 
in  the  insidious  flattery  of  the  public.  Its  chief  appeal 
was  the  capitalization  of  popular  prejudice  against  the 
bosses,  and  its  main  defense  relied  upon  vain  sophistries 
regarding  popular  majorities  and  their  assumed  omnipo- 
tence. In  other  words,  the  direct  primary  was  not  the 
product  of  a  careful  and  scientific  analysis  of  the  problem 
of  party  nominations,  nor  a  constructive  effort  so  to  or- 
ganize our  political  machinery  that  the  public  opinion 
of  the  party  would  function  with  maximum  efficiency 
and  beneficence.  It  was  an  attempt  to  make  party  nomi- 
nations subject  to  popular  control,  without  taking  the 
pains  to  analyze  the  conditions  inherent  in  the  latter.  In 
other  words  the  movement  was  histrionic,  rather  than 
scientific. 

Our  state  constitutions  provided  for  the  election  of  cer- 
tain state  officers,  but  made  no  provision  for  their  nomi- 
nation. But  popular  election,  unless  restricted  to  a  choice 
from  a  very  limited  few,  becomes  an  obvious  absurdity. 
When  the  author  was  attending  the  public  school,  it  was 
decided  to  have  all  the  school  children  march  to  the  ceme- 

66 


tery  on  M 


THE  DIRECT  PRIMARY  67 


>ry  on  Memorial  Day.  The  boys  in  the  author's  class 
were  asked  to  elect  a  captain  to  lead  the  march.  A  vote 
was  taken  by  secret  ballot,  without  any  opportunities  for 
the  scholars  to  talk  it  over  and  develop  any  consensus  of 
opinion.  The  result  was  that  out  of  about  thirty  votes 
cast,  most  of  the  pupils  received  one  vote,  and  the  boy 
who  was  elected  received  four.  He  was  the  most  cordially 
disliked  boy  in  the  group,  and  secured  his  election  by 
exchanging  promises  with  three  neighbors  to  vote  for 
each  of  them  if  they  would  vote  for  him,  and  then  finally 
voting  for  himself.  No  one  could  possibly  say  that  the 
election  was  an  expression  of  the  group  opinion.  If  there 
had  been  two  or  three  candidates  from  whom  the  voters 
could  have  made  their  choice,  another  more  representa- 
tive boy  would  have  been  elected.  Nominations  are  thus 
essential  to  effective  popular  elections. 

The  people  did  not  take  long  to  realize  that  if  they 
were  to  control  the  government  of  the  state,  they  must 
organize  into  groups,  according  to  political  theories  or 
prejudices,  nominate  a  candidate  and  place  the  party  label 
upon  him,  in  order  that  the  public  might  have  a  basis 
of  judging  him  and  of  holding  his  group  accountable  for 
his  conduct.  It  was  the  only  way  public  opinion  could 
function  in  the  control  of  state  government.  Political 
parties  originated  in  this  very  obvious  necessity.  Likewise, 
it  was  only  through  group  effort  that  political  issues  could 
be  formulated.  The  great  mass  of  the  people  become 
articulate  only  when  their  leaders,  seeking  to  interpret 
their  thoughts  and  aspirations,  formulate  broad,  general 
principles  upon  which  they  can  vote  with  a  "yes"  or  "no." 

Moreover,  the  leaders  soon  observed  a  popular  indif- 
ference and  ignorance  regarding  political  issues.  If  a 
group  believing  in  certain  political  concepts  desired  to 
cause  them  to  prevail,  it  became  necessary  for  them  to 


68  POPULAR  GOVERNMENT 

carry  on  campaigns  of  agitation,  education,  and  sugges- 
tion to  win  adherents  to  their  cause.  This  resulted  in 
the  development  of  much  elaborate  machinery  for  the 
purpose  of  winning  popular  support,  while  the  waging  of 
political  campaigns  became  one  of  the  important  functions 
of  the  political  party.  From  the  standpoint  of  the  prac- 
tical politician,  the  most  important  task  confronting  the 
party  organization  is  to  see  that  every  member  casts  his 
vote  at  the  election.  It  has  recently  been  the  fashion, 
among  certain  of  the  morally  elite,  to  condemn  political 
parties  as  unnecessary  evils,  and  their  organizations  as 
necessarily  wicked  and  despotic  "machines,"  although  one 
of  the  most  important  functions  of  this  "machine"  is  to 
beg,  cajole,  and  haul  the  indifferent  voter  to  the  exercise 
of  his  sovereign  right.  The  author  has  observed  many 
elections,  where  a  very  high  percentage  of  the  vote  would 
never  have  been  cast  had  it  not  been  for  the  eternal  vigi- 
lance of  the  politician  and  the  activities  of  the  "machine." 
The  performance  of  these  three  important  functions — 
the  nomination  of  candidates,  the  formulation  of  prin- 
ciples, and  the  campaigns  of  publicity — has  called  into 
being  a  very  elaborate  system  of  political  machinery,  with 
which  the  great  parties  must  necessarily  be  equipped.1 
Without  going  into  details,  a  modern  political  party  may 
be  described  as  composed  of  three  hierarchies,  the  first 
a  hierarchy  of  caucuses,  conventions  or  primaries,  depen- 
dent upon  the  election  laws  and  party  customs  of  the 
various  states.  There  is  at  the  bottom  the  precinct  pri- 
mary, mass  meeting,  or  caucus,  in  which  the  members  of 
the  party  select  their  committeemen,  and  perhaps  their 
delegates  to  the  county  and  state  convention,  if  the  local 
convention  system  is  still  in  use.  Then  there  is  the  county 

*For  a  discussion  of  the  organization  of  political  parties,  see  Ray, 
An  Introduction  to  Political  Parties  and  Practical  Politics  (2nd  ed.)« 


THE  DIRECT  PRIMARY  69 

convention  or  primary,  the  state  convention  or  primary 
or  both,  and  the  great  national  convention.  In  addition, 
all  other  electoral  districts,  such  as  congressional  dis- 
tricts, state  legislative  districts,  cities,  etc.,  have  their 
primaries  or  conventions,  to  nominate  their  candidates, 
choose  their  party  officers,  and  frame  party  issues. 

The  second  hierarchy  is  the  system  of  committees,  be- 
ginning with  the  precinct  committeeman  and  running  up 
through  the  township,  county,  state,  and  culminating  in 
the  national  central  committee.  While  this  line  of  com- 
mittees forms  the  backbone  of  the  national  party  organi- 
zation, there  are  also  committees  for  all  the  other  elec- 
toral districts  and  political  subdivisions  of  the  state.  It 
is  the  business  of  these  committees  to  look  after  the  party 
interests,  wage  the  campaigns,  arrange  for  conventions 
and  primaries,  when  not  provided  for  by  law,  and  look 
after  all  the  administrative  details  of  party  activities. 

The  third  hierarchy  is  found  in  the  groups  of  party 
leaders  or  political  bosses.  These  are  the  men,  who,  by 
virtue  of  their  dominant  personalities,  executive  ability, 
and  capacity  to  handle  men,  are  the  real  moving  spirits 
in  party  affairs.  They  may  be  party  committeemen,  pub- 
lic officers,  or  merely  practical  politicians  whose  political 
skill,  devotion  to  party  interest,  and  commanding  per- 
sonalities have  given  them  dominant  positions  in  the  coun- 
sels of  the  party.  In  this  respect  political  parties  are  no 
different  from  other  groups  of  individuals.  Every  suc- 
cessful church  has  its  little  group  of  men  whose  loyalty 
to  the  organization,  whose  personality,  executive  ability, 
and  interest  in  its  achievements,  make  them  the  dominant 
forces  in  shaping  its  destiny.  We  call  them  the  pillars  of 
the  church.  Every  successful  commercial  club  has  its  lit- 
tle coterie  of  leaders,  men  whose  vision,  forcefulness, 
and  devotion  furnish  the  leadership,  the  dynamics,  and 


70  POPULAR  GOVERNMENT 

the  efforts  that  insure  success.  We  call  them  the  leaders 
of  the  community,  the  "live  wires"  of  business.  But  for 
the  men  who  take  the  dominant  interest  in  politics,  do 
the  work,  furnish  the  energy  and  supply  the  leadership, 
we  reserve  unmeasured  condemnation.  We  call  them 
"bosses."  We  are  told  that  they  are  petty,  partisan,  sel- 
fish, and  occasionally  corrupt.  But  these  qualifications  are 
not  peculiar  to  politicians.  They  are,  unfortunately,  pecul- 
iar to  the  human  race. 

As  contemptible  partisanship  as  the  author  has  ever 
seen  has  been  at  a  church  convention,  and  yet  he  is  an 
enthusiastic  churchman  in  spite  of  it.  He  never  knew  a 
church,  a  commercial  club,  or  any  other  kind  of  organized 
group  that  did  not  frequently  forget  its  ultimate  mis- 
sion or  goal  and  become  entangled  in  the  meshes  of  par- 
tisanship, selfishness,  and  bigotry,  and  yet  these  institu- 
tions are  important  forces  in  our  community  life.  We 
do  not  propose  to  abolish  them  because  of  these  evils, 
nor  to  rob  them  of  their  leaders  because  frequently  they 
may  be  partisan  or  tyrannical.  The  same  wholesome  at- 
titude toward  political  parties  will  aid  greatly  in  ap- 
proaching intelligently  the  problems  that  they  present. 
We  can  no  more  abolish  leadership  in  politics  than  we 
can  in  education,  industry,  or  the  church.  Much  fine-spun 
theory  has  been  evolved  from  time  to  time,  discriminat- 
ing between  political  bosses  and  leaders,  but  it  is  useless. 
For  purposes  of  practical  politics  the  distinction  is  obvi- 
ous. The  dominant  personalities  in  my  party  are  leaders, 
but  in  your  party  they  are  bosses.  The  political  arrange- 
ments of  my  party  constitute  an  organization,  but  a  sim- 
ilar arrangement  in  your  party  becomes  an  iniquitous 
machine. 

To  wage  a  fearless  campaign  against  the  bosses  is 
quite  as  heroic  as  the  chivalrous  attack  of  Don  Quixote 


THE  DIRECT  PRIMARY  71 

against  the  windmills.  And  yet  much  splendid  energy  has 
been  exploited  and  vast  resources  of  moral  indignation 
squandered  in  sham  battles,  which  a  credulous  public  has 
thought  were  real.  The  following  quotation  from  Mr. 
F.  A.  Cleveland  gives  a  discriminating  and  accurate  state- 
ment of  the  place  of  the  boss  in  our  political  system.  "An 
American  political  'boss'  is  commonly  one  of  the  most  in- 
telligent and  efficient  citizens  that  we  have.  His  guiding 
motive  may  not  be  the  public  welfare,  but  he  has  had  a 
clearer  concept  of  the  essential  factors  of  democracy  than 
has  the  reformer  who  dreams  of  high  statesmanship  in 
terms  of  abstract  morality,  but  who  lacks  the  touch  and 
balance  of  facts  about  the  everyday  life  of  the  people. 
'The  boss'  is  the  only  one  who  makes  it  his  business  to 
know  what  is  necessary  to  supply  the  community  needs 
which  are  brought  home  to  him.  He  has  been  the  only 
one  who  has  had  a  comprehensive  citizen  program. 
To  the  Tweed  and  other  'graft'  organizations  New  York 
owes  much  that  is  best  in  the  development  of  municipal 
life.  It  has  been  under  the  rule  of  'the  organization'  that 
Philadelphia  has  developed  practically  all  that  may  be 
considered  the  product  of  a  well-considered  constructive 
program.  This  has  not  been  accomplished  in  response 
to  ideals  of  public  service  in  the  'organization,'  but  as  a 
means  of  getting  the  support  of  those  who  want  public 
service.  It  is  this  that  commends  'the  boss'  to  the  people. 
He  makes  provision  for  systematic  contact  with  citizen 
activities,  citizen  opinion,  citizen  interest  in  order  that  he 
may  have  the  information  necessary  to  win  the  suffrages 
of  a  less  intelligent  electorate,  thereby  obtaining  for  him- 
self and  for  his  organization  the  chance  to  exercise  for 
partisan  and  personal  ends  powers  which  carry  with  them 
the  use  of  funds  and  properties  entrusted  to  officers  of 
government.  'The  boss'  has  made  citizenship  his  busi- 


72  POPULAR  GOVERNMENT 

ness.  With  the  reformer,  citizenship  has  been  only  an 
emotion."1 

As  our  public  problems  have  become  more  complex, 
as  the  number  of  popularly  elected  officers  has  been  en- 
larged, and  as  the  machinery  of  government  has  become 
increasingly  intricate,  the  importance  of  the  political  boss 
has  necessarily  kept  pace.  For  with  the  enlarging  burdens 
thrown  upon  the  electorate,  and  without  a  corresponding 
increase  in  civic  interest  and  intelligence,  the  boss  has 
fortunately  come  in  to  do  what  the  people  would  not  or 
could  not  do.  The  problem  confronting  the  practical  stu- 
dent of  politics  is  not,  therefore,  the  elimination  of  the 
boss,  for  that  is  impossible  so  long  as  political  parties  con- 
tinue to  afford  the  only  practical  method  of  popular  con- 
trol. The  real  problem  involved  is  twofold.  We  may  so 
reorganize  our  political  system  that  the  excess  burdens 
now  thrown  upon  the  voter,  and  which  the  boss  assumes, 
should  be  placed  upon  responsible  officers,  who  may  be 
held  to  both  legal  and  political  responsibility.  Or  we  may 
still  farther  perfect  our  party  system,  giving  the  organiza- 
tion fuller  power,  and  establishing  a  definite  doctrine  of 
strict  accountability  for  the  party  and  its  boss.  Bosses 
and  parties  we  must  have,  but  we  want  to  fix  their  respon- 
sibility so  definitely  and  completely  that  public  opinion 
may  function  effectively,  when  it  will,  in  demanding  a 
better  type  of  leader,  and  a  higher  standard  of  service. 
The  question  as  to  the  type  of  boss  and  the  character  of 
his  public  service  is  always  the  vital,  fundamental  issue. 
We  have  had  bosses  who  have  been  corrupt,  cruel,  des- 
potic, and  immoral,  and  we  have  had  others  who  have 
been  clean,  patriotic,  and  efficient. 

The  party  system  as  it  has  evolved  in  America  has  de- 
veloped many  evils,  some  of  which  have  been  already 

^Organised  Democracy,  pp.  443-44. 


THE  DIRECT  PRIMARY  73 

noted.  The  party  officers  and  leaders  do  not  always  seek 
faithfully  to  interpret  public  opinion  but  frequently  seek 
to  falsify  it  from  partisan  or  selfish  motives.  They  fre- 
quently sacrifice  the  public  good  for  partisan  expediency. 
By  the  spoils  system  they  have  sought  to  perfect  their 
political  strength  at  the  cost  of  the  public  service.  They 
frequently  and  deliberately  seek  to  confuse  the  issues,  in 
order  to  protect  a  selfish  or  a  sordid  policy,  and  yet  escape 
detection.  The  evils  of  graft  and  inefficiency  must  be 
checked  up  against  the  parties  in  power,  just  the  same 
as  the  credit  for  constructive  and  patriotic  achievement 
must  be  granted  them. 

When  we  consider  the  vast  importance  of  the  three 
great  functions  performed  by  political  parties,  together 
with  the  possible  evils  and  abuses  of  the  party  system,  the 
question  of  party  responsibility  becomes  a  matter  of  para- 
mount concern.  It  is  only  by  holding  them  to  the  doctrine 
of  strict  accountability  for  the  results  obtained  that  the 
public  can  safeguard  its  legitimate  interests  against  the 
evils  of  partisan  abuse.  Under  our  form  of  government 
no  party  organization  can  retain  its  power  save  by  popu- 
lar support.  No  boss  can  continue  his  rule  longer  than 
the  people  will  elect  his  party  and  candidates  to  power. 
The  successful  boss  always  pays  the  price  of  popular  sup- 
port. The  difficulty  is  that,  frequently,  the  people  exact 
too  low  a  price.  They  are  so  indifferent  that  they  are  sat- 
isfied with  the  minimum  of  public  service,  leaving  much  of 
the  public  business  to  be  done  according  to  the  selfish  in- 
terests of  the  boss  and  his  machine.  How  the  public  may 
be  aroused  to  demanding  more  is  an  important  question 
but  outside  the  scope  of  the  present  work.  How  such  a 
demand  may  be  easily  and  effectively  made,  when  the  pub- 
lic so  desire,  is  the  problem  with  which  we  are  here  con- 
cerned. In  the  solution  of  this  problem  two  things  are 


74  POPULAR  GOVERNMENT 

fundamental.  First,  we  must  give  to  the  party  organiza- 
tion and  its  members  full  power  in  the  performance  of 
those  functions  assigned  to  them.  Secondly,  we  must  pro- 
tect the  organization  and  its  members  against  dishonesty 
and  corruption  from  within  and  from  the  alien  interfer- 
ence of  competing  parties  from  without.  We  cannot  fairly 
or  intelligently  hold  them  to  strict  responsibility  for  tasks 
in  the  performance  of  which  they  are  not  given  sufficient 
power,  or  where  they  are  not  protected  by  the  state 
against  the  fraud  and  dishonesty  of  their  own  members, 
and  the  demoralizing  influence  of  their  political  foes. 
In  the  main,  political  parties  are  given  full  power  and 
responsibility.  Most  states  have  provided  corrupt  prac- 
tices acts  to  safeguard  party  procedure  from  dishonesty 
and  graft,  and  most  of  the  states  either  protect  the  party 
from  alien  interference  or  at  least  permit  the  party  to 
protect  itself. 

On  the  other  hand  some  states,  such  as  Wisconsin, 
have  adopted  an  open  primary,  in  which  any  elector  has  a 
legal  right  to  vote  in  the  primaries  of  the  opposing  party. 
If  the  Democrats  have  no  fight  in  their  own  party,  which 
is  frequently  the  case  with  a  minority  party,  their  partisan 
interests  can  best  be  served  by  voting  in  the  Republican 
primaries  for  the  poorest  candidate,  in  order  that  the 
Democrats  may  have  an  easier  opponent  to  defeat.  In  a 
recent  senatorial  primary  in  Wisconsin,  many  Democratic 
precincts  voted  almost  solidly  in  the  Republican  prima- 
ries in  favor  of  a  candidate  for  the  Senate,  whose  atti- 
tude on  the  war  was  regarded  by  pro-war  advocates  as 
unsatisfactory,  realizing  that  if  such  a  candidate  could 
be  nominated  for  the  Republicans,  the  Democrats  might 
expect  a  victory.  Other  incidents  of  similar  nature  can 
be  cited.  Under  such  a  system,  party  responsibility 
becomes  impossible.  The  only  alternative,  in  order 


THE  DIRECT  PRIMARY  75 

to  secure  a  responsible  government,  is  for  the  peo- 
ple to  take  over  themselves  many  of  the  tasks  they 
have  been  leaving  to  the  machine  and  its  bosses. 
But  this  they  have  shown  that  they  cannot  and  will 
not  do.  They  will  not  watch  carefully  and  eagerly  all  the 
details  of  the  public  business,  in  order  to  know  what  offi- 
cers may  be  right  and  what  ones  are  wrong.  They  have 
demonstrated  time  and  time  again  that  they  cannot  and 
that  they  will  not  bear  such  burdens.  The  establishment 
of  party  responsibility,  therefore,  as  a  fundamental  prin- 
ciple of  popular  control  seems  indispensable  under  all  the 
circumstances  of  the  case. 

Among  the  most  controverted  changes  that  have  been 
made  in  party  machinery,  in  order  to  meet  the  evils  above 
suggested,  as  well  as  certain  specific  evils  inherent  in  the 
convention  system,  is  the  direct  primary.  Before  the  di- 
rect primary  made  its  appearance,  state  officers  were 
nominated  by  party  conventions,  and  party  committeemen 
were  chosen  in  the  same  manner.  Because  of  boss  control, 
the  undue  influence  of  predatory  wealth,  the  manipulation 
of  the  delegates  by  professional  politicians,  the  quality 
of  delegates  attending  the  conventions,  and  the  various 
other  types  of  partisan  abuse  and  public  indifference,  the 
direct  primary  has  been  adopted  in  many  states  and  the 
state  convention  abolished,  or  its  functions  greatly  lim- 
ited. The  fundamental  change  consists  in  the  people's 
attempting  to  do  directly  two  things  that  formerly  they 
left  to  the  conventions,  viz.,  the  nomination  of  candidates 
and  the  election  of  party  officers  and  committees.  The 
formulation  of  platforms  is  generally  left  to  a  convention 
composed  of  all  the  candidates  for  office,  or  to  be  a  con- 
vention composed  of  the  party  committee  and  the  party 
candidates,  or  to  a  form  of  the  initiative  and  referendum 
among  the  party  voters.  The  state  nominating  conven- 
tions were  composed  of  delegates  elected  from  certain 


76  POPULAR  GOVERNMENT 

selected  subdivisions  of  the  state,  either  elected  directly 
in  primaries,  or  elected  indirectly  in  local  conventions,  by 
the  voters  of  the  party.1 

Thus  the  direct  primary  as  a  substitute  for  the  state 
convention  raises  directly  the  fundamental  issue  of  repre- 
sentative government  as  against  direct  democracy,  in  the 
selection  of  party  candidates  for  public  office  and  the  ap- 
pointment of  party  officers  and  committees.  That  the 
members  of  the  party  should  control  in  both  of  these  mat- 
ters is  admitted.  The  real  question  is  then  how  can  that 
control  be  most  effectively  and  intelligently  exercised. 
Under  which  system  will  the  public  opinion  of  the  party 
be  most  effectively  expressed,  and  the  doctrine  of  party 
responsibility  most  adequately  guaranteed? 

This  requires  an  analysis  of  the  task  to  be  performed. 
It  consists  in  the  selection  of  candidates  for  the  various 
state  officers,  which  include  judges  of  the  higher  courts, 
state  superintendent  of  public  instruction,  treasurer, 
auditor,  attorney  general,  governor  and  lieutenant  gover- 
nor. In  addition  to  these,  many  states  elect  some  of  the 
following  officers:  State  statistician,  members  of  railroad 
commission,  state  geologist,  and  clerk  and  reporter  of  the 
supreme  court.  The  state  officers  and  committees  of  the 
party  are  also  elected.  Take  for  example  the  nomination 
of  a  party  candidate  for  state  statistician.  There  are  pos- 
sibly fifty  men  in  the  state  of  sufficient  technical  training, 
character,  and  general  equipment  who  are  capable  of  fill* 
ing  that  office  with  varying  degrees  of  satisfaction.  But 
unless  one  of  these  men  has  secured  some  unusual  pub- 
licity, quite  uncommon  among  men  of  that  profession,  it 
is  a  safe  estimate  that  there  are  not  five  thousand  citi- 
zens in  the  state  who  know  any  one  of  these  fifty  men 

aThe  best  discussion  of  the  direct  primary  will  be  found  in  C.  E. 
Merriam,  Primary  Elections. 


THE  DIRECT  PRIMARY  77 

with  sufficient  intimacy  to  pass  an  intelligent  judgment 
upon  his  qualifications  for  the  office.  In  a  state  of  3,000,- 
000  population,  this  means  that  less  than  one-sixth  of  one 
per  cent,  of  the  population  will  have  intelligent  informa- 
tion regarding  any  one  of  the  fifty  men.  But  this  is  not 
all.  An  intelligent  selection  of  one  from  this  fifty  in- 
volves not  merely  a  knowledge  of  one  of  them,  but  a 
knowledge  of  the  relative  merits  of  each  of  the  fifty,  in 
order  that  the  best  one  may  be  selected.  Now  it  is  obvi- 
ous that  there  will  not  be  one  one-hundredth  of  one  per 
cent,  of  the  voters  of  the  state  who  will  have  any  reliable 
acquaintance  with  a  dozen  of  the  fifty,  to  say  nothing  of 
an  adequate  knowledge  of  them  all.  To  meet  this  situa- 
tion only  the  names  of  those  persons  are  placed  upon  the 
primary  ticket  who  have  secured  petitions  bearing  a  cer- 
tain number  of  signatures.  But  the  evidence  shows  that 
petitions  are  generally  signed  as  a  matter  of  course  and 
are  not  based  upon  the  signers'  supposed  knowledge  of 
the  relative  qualifications  of  the  possible  candidates.  The 
candidates  who  are  eager  enough  for  the  job,  or  whose 
friends  are,  are  the  ones  placed  upon  the  ticket.  They 
may  be  the  worst  or  the  best  from  the  list,  there  is  no 
way  of  determining.  It  is  a  pure  matter  of  chance.  Yet 
under  the  direct  primary  system  some  one  will  be  nomi- 
nated by  the  party  voters  from  this  list  of  candidates, 
with  no  one  responsible  for  their  selection,  for  this  office 
of  state  statistician,  although  not  one-sixth  of  one  per 
cent,  of  those  voting  have  a  reliable  firsthand  basis  for 
an  intelligent  choice. 

The  same  situation  in  general  exists  in  relation  to  the 
office  of  state  geologist,  members  of  railroad  commis- 
sions, clerk  and  reporter  of  the  supreme  court,  state  treas- 
urer, auditor,  members  of  the  supreme  bench  and  state 
superintendent  of  public  instruction.  In  regard  to  some  of 


78  POPULAR  GOVERNMENT 

these  offices,  the  available  men  may  be  known  to  a  larger 
number  of  people  than  is  true  in  case  of  the  office  of  state 
statistician,  and  yet  there  is  no  evidence  to  suppose  that 
in  any  case,  with  the  exception  of  the  candidates  for  gov- 
ernor, that  the  number  of  those  in  a  position  to  pass  an 
intelligent  judgment  will  exceed  one-third  of  one  per  cent, 
of  voters.  In  a  lecture  trip  through  a  direct  primary  state 
several  years  ago,  the  author  put  the  following  question 
to  twenty-one  audiences  that  averaged  about  one  thou- 
sand persons  to  an  audience  :  uHow  many  persons  in  this 
audience  had  any  reliable,  authoritative  information  re- 
garding the  personal  fitness  and  technical  qualifications 
for  office  of  any  candidates  on  any  ticket  in  the  last  state 
primary,  with  the  exception  of  the  candidates  for  gover- 
nor, and  with  the  further  exception  of  any  candidate  that 
might  happen  to  reside  in  this  community?"  There  were 
on  the  average  three  in  each  audience  who  felt  that 
they  had  such  authoritative  information.  It  is  interesting 
to  note  that  in  most  cases  those  three  were  local  politi- 
cians. 

This  would  seem  to  indicate  that  such  a  thing  as  a  pub- 
lic opinion  on  the  best  candidate  for  most  of  the  offices 
for  whom  candidates  are  nominated  is  wholly  and  abso- 
lutely impossible.  The  problem  here  that  is  submitted  to 
the  voters  is  a  question  of  fact,  viz.,  who  are  the  men 
in  the  state  best  fitted  for  the  offices  to  be  filled?  In  the 
preceding  chapter  we  have  seen  that  there  can  be  no  pub- 
lic opinion  on  the  determination  of  such  matters  of  fact 
and  judgment.  We  might  have  a  public  opinion  on  the 
best  method  of  determining  that  question,  or  public  opin- 
ion might  function  indirectly,  by  selecting  local  political 
leaders  whom  most  of  the  voters  may  know,  sending  them 
to  a  state  convention,  and  asking  them  to  pick  the  men, 
in  conference  with  other  local  representatives  and  the 


THE  DIRECT  PRIMARY  79 

party  leaders  of  the  state.  Public  opinion  could  then 
test  the  work  done  and  function  on  the  results  achieved, 
and  hold  the  party  to  strict  accountability  for  the  work 
of  the  men  that  they  had  chosen. 

In  other  words,  the  question  of  who  is  the  best  avail- 
able man  for  the  office  is  not  a  matter  of  philosophy  upon 
which  the  voter  may  have  conviction,  nor  is  it  a  ques- 
tion of  common  sense  and  general  observation,  nor  is  it 
a  question  upon  which  any  number  of  the  voters  will  take 
the  time  to  investigate  the  material  facts  and  come  to  a 
real  opinion  of  their  own.  This  is  amply  illustrated  by  the 
large  number  who  have  no  reliable  information  regard- 
ing the  candidates  from  whom  they  have  made  a  selection. 
In  regard  to  the  vast  number  of  officers  nominated  by  di- 
rect primaries,  therefore,  there  is  no  public  opinion  in 
existence.  It  is  either  a  mere  matter  of  chance,  caprice, 
accident,  or  suggestion,  or  an  organized  competition  in  the 
art  of  hired  publicity  with  their  traditional  attempts  to 
capitalize  prejudice,  ignorance,  provincialism,  impatience, 
or  unrest.  The  type  of  publicity  resorted  to  in  these 
primary  campaigns,  especially  in  regard  to  the  minor  offi- 
cers, is  quite  frequently  pure  demagoguery  and  not  educa- 
tion. The  direct  primary,  so  far  as  it  has  to  do  with 
other  officers  than  that  of  governor,  can  scarcely  be 
called  a  device  of  popular  government,  if  we  are  to  ad- 
here to  the  statement  that  popular  government  is  that  in 
which  public  opinion  is  in  control.  The  only  way  in  which 
public  opinion  could  possibly  control  in  such  a  case,  is,  as 
has  already  been  suggested,  indirectly  through  the  selec- 
tion of  local  delegates  to  a  state  convention,  followed  up 
and  checked  with  the  theory  of  party  responsibility  for 
the  results  of  the  administration  so  selected.  If  the  dele- 
gates to  a  state  convention  are  selected  from  small  dis- 
tricts, at  a  legal  primary  election,  under  all  the  safeguards 


80  POPULAR  GOVERNMENT 

of  law,  the  people  have  an  opportunity  to  select  at  least 
one  of  their  number  who  enjoys  the  confidence  of  the 
community,  who  will  take  part  in  nominating  a  list  of 
candidates.  They  will  normally  select  a  local  politician, 
who  is  more  or  less  in  touch  with  the  political  situation, 
and  who  is  likely  to  know  something  of  the  men  who  are 
available  as  candidates  for  public  office.  He  will  have 
an  opportunity  to  meet  them  all  at  the  convention,  where 
the  candidates  have  headquarters  to  which  delegates  are 
cordially  welcomed,  and  presented  with  all  the  arguments 
in  favor  of  each  candidate  and  against  the  rest.  In  addi- 
tion, the  delegates  will  confer  with  the  state  party  lead- 
ers, and  will  be  greatly  influenced  by  their  advice.  On 
occasions  they  will  slavishly  follow  such  advice.  In  fact, 
it  is  the  influence  of  the  experienced  party  leaders,  who 
have  been  studying  the  situation  for  months,  that  may  be 
the  most  valuable.  It  is  undoubtedly  true  that  these  lead- 
ers occasionally  dominate  the  whole  situation  by  a  sys- 
tem of  political  manipulations  and  that  bad  candidates 
are  deliberately  chosen.  But  if  this  happens  it  is  because 
the  people  of  the  various  communities  have  selected  as 
their  delegates  men  who  can  be  controlled,  manipulated, 
or  hoodwinked,  and  furthermore,  it  is  because  the  shrewd 
party  leaders  know  that  the  public  will  not  be  awake 
enough  to  hold  the  party  responsible  for  results 
achieved.  For  party  leaders  want  political  power  above 
all  things  on  earth,  and  if  the  public  demands  a  high-class 
list  of  candidates,  one  that  will  give  splendid  results  when 
entrusted  with  power,  the  party  leaders  will  not  only 
make  it  their  personal  business  to  see  that  it  is  done,  but 
they  are  the  one  group  in  the  state  whose  experience  in 
judging  men,  and  whose  knowledge  of  the  possible  candi- 
dates for  office,  and  of  the  nature  of  the  public  business 
to  be  done,  has  best  equipped  them  to  make  these  selec- 


THE  DIRECT  PRIMARY  81 

tions  the  most  efficiently  and  the  most  unerringly.  It  is 
indirectly  and  through  such  means,  therefore,  that  public 
opinion  can  function  and  function  with  effectiveness  and 
dispatch. 

Moreover,  under  such  a  system,  where  there  is  a  pub- 
lic opinion  in  favor  of  good  and  efficient  government, 
there  is  always  the  party  organization,  composed  of  the 
ablest  and  most  alert  of  the  politically  informed  men  of 
the  state,  who  are  always  "on  the  job"  to  see  that  the  offi- 
cers whom  they  nominated,  and  for  whom  the  party  must 
answer  in  the  future,  do  their  work  and  do  it  well.  Any 
careful  observer  of  politics  can  cite  innumerable  examples 
where  the  party  organization  has  come  to  the  rescue 
of  a  weak  public  servant  in  order  that  the  party  might 
be  spared  the  criticism  and  hostility  that  inefficient  gov- 
ernment could  bring  upon  them.  In  a  direct  primary, 
where  the  party  leaders  have  less  to  say,  party  responsi- 
bility is  much  less  secure,  and  where  there  is  the  open 
primary,  it  tends  to  disappear  entirely.  If  the  organiza- 
tion is  deprived  of  power,  it  can  scarcely  be  held  responsi- 
ble. The  voter  has  nothing  more  stable  to  rely  upon  than 
the  ambition  and  integrity  of  the  candidate  blindly  nomi- 
nated by  a  group  of  voters  who  knew  little  of  his  qualifi- 
cations or  fitness.  Public  indignation  may  blaze  forth 
from  time  to  time,  but  it  can  have  nothing  to  operate 
upon  except  to  turn  a  few  luckless  candidates  out  of  office 
and  put  in  a  group  of  new  ones  about  whom  it  knows  lit- 
tle. Under  the  convention  system  and  the  theory  of  party 
responsibility,  when  public  indignation  blazes  forth,  it  is 
against  a  party  in  power,  which  will  not  soon  forget  their 
loss  of  prestige  and  which  will  seek  to  make  amends  in 
framing  the  best  ticket  that  the  most  skillful  political 
leaders  and  the  wisest  statesmen  of  the  party  can  select, 
and  in  seeing  to  it  that  they  do  not  too  soon  become  weary 


82  POPULAR  GOVERNMENT 

of  well-doing,  so  long  as  public  opinion  is  demanding 
actual  results  as  the  price  of  their  support. 

If  public  opinion  is  indifferent,  it  is  true  that  under 
the  convention  system  the  political  leaders  tend  to  run 
things  to  suit  themselves,  so  far  as  they  are  able,  while 
an  irresponsible  press  or  the  publicity  makers  in  the  em- 
ploy of  those  who  have  the  financial  means  to  command 
them  tend  to  dominate  the  nominations  under  a  direct 
primary.  It  makes  little  difference,  where  the  public  are 
indifferent,  which  system  is  in  vogue.  But  when  public 
opinion  develops  a  real  demand  for  efficient  government, 
it  is  through  the  convention  system  that  such  a  demand 
can  be  the  most  efficiently  expressed,  and  the  most  effec- 
tively followed  up. 

In  view  of  the  fact  that  the  primary  election  does  not 
record  a  public  opinion  in  the  choice  of  the  great  majority 
of  candidates  so  nominated,  then  what  is  the  effect  of 
such  a  method?  When  popular  pluralities  control  in  re- 
gard to  matters  upon  which  public  opinion  does  not  and 
cannot  exist,  what  forces  determine  the  selection  of  can- 
didates? In  previous  chapters  we  have  seen  that  the  re- 
sults are  determined  largely  by  accident,  suggestion, 
newspaper  cartoons,  leads  and  headlines,  and  the  popular 
caprice  or  vagaries  of  the  moment.  Most  of  the  argu- 
ments in  favor  of  the  direct  primary  have  to  do  with  three 
propositions,  viz.,  first,  that  it  selects  a  better  type  of 
candidates;  secondly,  that  it  is  the  best  instrument  of 
popular  control;  and  thirdly,  that  it  is  essential  to  the  de- 
thronement of  the  political  boss.  Let  us  examine  those 
three  claims  in  the  light  of  the  fact  that  most  nominations 
by  the  primary  do  not  represent  real  public  opinion,  but 
are  necessarily  determined  by  the  capricious  and  unreli- 
able forces  above  mentioned. 


THE  DIRECT  PRIMARY  83 

Does  the  direct  primary  tend  to  secure  a  better  type 
of  candidates?  Does  a  plurality  of  votes,  undirected  by 
a  genuine  public  opinion,  as  is  the  case  in  reference  to  the 
great  majority  of  officers,  secure  better  results  than  a 
convention?  When  the  public  are  not  interested,  neither 
system  will  give  good  results,  but  when  the  public  really 
want  able,  competent  men  for  office,  under  which  system 
will  they  be  most  likely  to  obtain  them  ?  The  first  obser- 
vation is  that  the  primary  places  a  large  premium  upon 
qualities  of  publicity,  which  are  generally  more  common 
among  superficial  than  among  profound  men.  Since  such 
an  infinitesimal  portion  of  the  voters  has  any  reliable  in- 
formation about  most  men  for  whom  they  vote,  the  man 
who  can  secure  the  most  publicity,  who  is  the  most  pic- 
turesque, and  can  make  the  front  page  of  the  press  the 
most  frequently,  is  the  one  most  likely  to  be  secured  under 
a  system  where  caprice,  accident,  and  suggestion  are  the 
controlling  factors.  Very  likely  the  most  scholarly  jurist, 
with  the  most  judicial  poise,  will  be  the  one  who  attracts 
the  least  publicity  and  gets  the  fewest  votes,  while  the 
effective  seeker  after  notoriety,  who  has  mastered  the  art 
of  publicity  and  who  will  get  the  largest  vote,  is  not  likely 
to  be  nearly  so  scholarly,  learned,  or  judicial.  It  would  be 
very  unusual  for  a  man  of  this  type  to  be  a  man  well  suited 
to  survive  the  rough-and-tumble  game  of  direct  primary 
publicity.  In  a  convention,  the  leaders  will  be  alert  to 
pick  such  men  on  their  judicial  ticket  and  they  will  do 
so,  if  there  is  a  popular  demand  for  efficient  judges,  for 
they  cannot  afford  to  do  otherwise.  Many  cases  have  come 
under  the  author's  observation  where  men  have  been 
nominated  for  office  without  any  effort  being  made  by 
them,  merely  because  the  convention  wanted  strong  men 
to  strengthen  their  ticket  before  the  public.  It  is  needless 
to  observe  that  such  things  can  scarcely  happen  under  the 


84  POPULAR  GOVERNMENT 

primary  system.  Mr.  Allen  H.  Eaton  in  commenting  upon 
the  direct  primary,  has  found  such  to  be  the  case  in  Ore- 
gon. uAnother  disadvantage  which  applies  particularly 
to  thickly  settled  localities  where  candidates  are  not 
known  to  the  voters,  is  that  the  candidates  arc  not  sought 
out  by  the  electors;  that  is,  the  office  does  not  seek  the 
man,  but  man  almost  invariably  seeks  the  office.  With 
no  provision  by  which  the  qualifications  of  the  candidates 
are  to  be  considered  by  the  political  organizations,  with 
no  organizations  to  weed  out  men  for  official  positions, 
with  the  active  political  leaders  of  yesterday  out  of  the 
field  entirely,  the  result  is  that  men  generally  become  can- 
didates upon  their  own  initiative."1 

Professor  Frank  E.  Horack,  writing  of  the  primary 
elections  in  Iowa,  declared  that  "the  primary  election  re- 
turns seem  to  justify  the  statement  that  in  'counties  where 
a  contestant's  name  appeared  first  on  the  ballot,  he  in- 
variably carried  that  county.'  "2  Where  the  public  are 
asked  to  vote  on  matters  concerning  which  they  have  no 
opinion,  it  is  not  surprising  that  such  trivial  factors  may 
determine  the  results. 

Another  consideration  affecting  the  type  of  men  se- 
lected by  the  primary  is  the  item  of  expense.  Any  ob- 
server of  politics  can  recount  innumerable  incidents  of 
persons  nominated  under  the  convention  system  with  but 
little  or  no  expense  to  themselves,  merely  because  the 
convention  did  the  choosing.  While  it  is  true  that  for- 
tunes have  occasionally  been  spent  seeking  nomina- 
tions under  the  convention  system,  it  was  unusual.  On  the 
other  hand  it  is  almost  impossible  for  one  to  win  the  nom- 
ination to  state  office  under  the  direct  primary  without  a 
very  large  expense.  While  this  has  been  denied,  the  truth 
of  the  statement  seems  amply  vindicated  by  the  evidence. 

1C.  E.  Fanning,  Selected  Articles  on  Direct  Primary,  p.  176. 
d.,  p.  182. 


THE  DIRECT  PRIMARY  85 

Mr.  Eaton  declared  that  "Some  of  the  best  men  in  the 
state  of  Oregon  have  practically  bankrupted  themselves 
in  their  endeavor  to  acquire  office/'1  Professor  Merriam, 
the  accepted  authority  on  primary  elections,  has  observed 
uthat  the  cost  of  campaigning  where  candidates  are 
chosen  by  direct  vote  is  greater  than  ur^jder  the  other 
system.  In  a  delegate  primary  there  are  'generally  cer- 
tain districts  left  uncontested,  but  where  a  ^ew  votes  may 
turn  the  scale  the  canvass  is  carried  into  every  part  of 
the  territory.  The  few  supporters  won  in  p,  rival's  home 
territory  may  prove  decisive.  In  addition  {o  the  expense 
of  a  personal  canvass  comes  the  cost  of  advertisements 
inserted  in  the  newspapers,  the  circulation  of  literature, 
payments  for  expenses  of  meetings,  for  workers,  for  con- 
veyances, and  for  other  incidentals  that  aggregate  a  con- 
siderable sum.  *  *  *  Yet,  if  this  expenditure  is  directed 
toward  the  education  of  the  public,  the  outlay  is  on  the 
whole  desirable,  provided  the  sum  necessary  is  not  so 
great  as  to  exclude  or  unduly  obligate  the  poor  man."2 

When  the  form  of  publicity  generally  used  in  these 
campaigns  is  carefully  analyzed,  it  will  too  frequently  be 
found  to  consist  of  the  "scare  head,"  "display,"  or  merely 
suggestive  type  that  has  no  educational  value,  but  which 
tends  to  produce  an  unconscious  bias,  by  a  non-rational 
process,  in  favor  of  a  given  candidate.  Only  the  man 
already  in  office  and  well  known,  or,  who,  for  some  other 
reason,  has  been  able  to  attract  an  unusual  degree  of 
notoriety,  can  attract  the  favorable  attention  of  enough 
voters  to  enable  him  to  secure  a  state  nomination,  with- 
out a  very  large  expenditure  of  money,  if  there  is  any  real 
competition  for  the  office.  This  necessarily  places  a  great 
power  into  the  hands  of  those  who  have  the  selfish  in- 
terest and  the  financial  power  to  command  the  instru- 


Wrf.,  p.  176. 
*C.  E.  Merriam,  Primary  Elections,  p.  119. 


86  POPULAR  GOVERNMENT 

ments  of  publicity.  With  the  overwhelming  majority  of 
the  people  ignorant  regarding  the  several  candidates, 
it  is  not  difficult  to  create  by  skillful  suggestion  a 
popular  fancy *in  favor  of  some  candidate  who  may  be 
utterly  unworthy,  if  not  vicious.  This  will  not  so  easily 
happen  in  a  convention,  where  the  politicians  and  political 
leaders  will  be  on  the  alert  to  detect  the  presence  of  any 
candidate  whose  nomination  would  prejudice  the  future 
interests  of  the  party.  Again  it  should  be  observed  that 
if  the  public  is  indifferent,  even  in  regard  to  the  results 
achieved  by  any  administration,  selfish,  narrow,  and  occa- 
sionally corrupt  interest  will  prevail,  regardless  of  the 
system  that  is  employed* 

The  next  consideration  to  be  noted  is  the  statement 
that  the  direct  primary  "possesses  a  great  advantage  in 
that  it  offers  an  opportunity  for  the  defeat  of  a  conspic- 
uously unfit  candidate. "  This  may  be  true  if  there  are  but 
two  candidates  and  if  there  are  no  highly  organized  in- 
terests backing  the  conspicuously  unfit  man.  But  unless 
there  are  such  selfish  interests,  such  a  candidate  would 
easily  be  defeated  under  any  system,  and  if  there  are, 
the  direct  primary  gives  him  his  best  opportunity.  For 
instance,  in  the  first  congressional  elections  after  America 
entered  the  war  against  Germany,  a  number  of  congress- 
men were  considered  by  the  general  public  as  conspic- 
uously unfit  by  reason  of  their  war  records.  Now  suppose 
that  there  were  a  number  of  pro-war  candidates  in  each 
district  eager  to  run  against  the  conspicuously  unfit  can- 
didate, and  they  had  done  it,  the  pro-war  vote  would 
have  been  distributed  among  the  loyal  candidates,  while 
the  anti-war  votes,  backed  by  such  a  powerful  but  secret 
organization  as  the  German-American  Alliance,  would 
have  been  concentrated  upon  the  one  candidate,  who 


THE  DIRECT  PRIMARY  87 

would  have  easily  won  the  nomination  with  a  plurality 
of  the  vote,  although  the  public  favored  some  pro-war 
candidate.  If  the  pro-war  vote  were  not  divided,  it 
would  be  an  easy  matter  for  the  organization  of  the 
anti-war  voters  to  see  that  several  popular  pro-war 
candidates  were  brought  into  the  field.  This  is  very  easy 
where  hired  publicity  plays  so  large  a  part,  and  it  is 
frequently  done.  This  situation  could  only  be  avoided  by 
the  pro-war  voters  holding  congressional  district  conven- 
tions, nominating  a  pro-war  candidate,  and  then  electing 
a  committee  to  campaign  for  his  nomination.  This  was 
done  in  several  districts  and  with  marked  success.  This 
simply  meant  that  if  a  majority  of  the  voters  were  to  have 
their  way  in  the  primary,  and  to  defeat  a  conspicuously 
unfit  man,  they  were  compelled  to  resort  to  the  conven- 
tion system,  thereby  adding  additional  burdens,  expenses, 
and  difficulties  to  an  overworked  electorate.  Under  the 
convention  system  an  anti-war  candidate  would  have  had 
no  chance  whatever,  so  long  as  public  opinion  was  the 
other  way,  for  no  political  organization  would  have  dared 
to  permit  the  nomination  of  such  a  candidate. 

One  final  matter  deserves  consideration,  and  that  is 
the  alleged  tendency  of  the  primary  to  secure  the  renomi- 
nation  of  the  existing  officers.  To  those  who  suffer  from 
a  chronic  fear  of  political  machines,  this  would  be  a  seri- 
ous charge,  while  to  those  who  recognize  that  no  machine 
can  control  a  free  people  against  its  will,  it  will  seem 
an  argument  in  its  defense,  for  surely  the  presumption 
should  be  in  favor  of  the  candidate  who  has  had  experi- 
ence in  the  performance  of  his  official  duties.  In  theory 
and  in  practice  the  primary  seems  to  give  the  advantage 
to  the  existing  officer,  since  his  official  office  has  brought 
him  a  degree  of  publicity  which  others  are  not  so  likely 
to  enjoy. 


88  POPULAR  GOVERNMENT 

We  come  now  to  consider  the  primary  election  as  an 
instrument  of  popular  control.  Is  the  primary  a  better 
method  than  lhe  convention  for  the  registering  of  pub- 
lic opinion,  fc\  we  have  seen  that  the  essence  of  popular 
control  consists  in  the  dominance  of  public  opinion?  But 
we  have  also  incontrovertible  evidence  that  in  regard  to 
the  great  majority  of  candidates  for  state  office,  there  is 
no  such  thing  as  a  public  opinion  regarding  their  qualifica- 
tions for  office.  Public  opinion  can  only  function  then 
indirectly  through  the  selection  of  local  political  leaders, 
who  in  turn  will  select  the  candidate  at  a  state  convention. 
The  public  can  then  test  the  action  of  the  leaders 
and  the  party  by  observing  the  results  of  the  convention 
and  the  administration  that  follows,  holding  the  party 
to  strict  accountability  therefor.  Regarding  the  great 
majority  of  offices,  therefore,  it  seems  undeniable  that 
popular  control  is  possible  only  through  the  convention 
system,  unless  one  accepts  the  extreme  and  rather  bizarre 
theory  that  a  plurality  of  votes,  the  overwhelming  ma- 
jority of  which  were  cast  in  ignorance  of  the  relative 
qualifications  of  the  several  candidates,  constitutes  the 
essence  of  popular  government. 

Another  element  in  the  question  of  popular  control  is 
the  fact  of  minority  nominations.  In  order  to  avoid  the 
expense  and  trouble  of  two  primaries,  most  primary  laws 
provide  for  nomination  by  plurality  vote.  The  evil  of 
this  was  evidenced  by  the  examples  afforded  by  our  recent 
experience  in  selecting  candidates  for  congress  where 
the  war  issue  was  involved.  Without  the  preliminary 
convention  the  primaries  in  some  of  the  congressional  dis- 
tricts would  have  resulted  in  a  decisive  victory  of  the 
anti-war  sentiment,  although  the  majority  of  the  people 
were  of  the  opposite  opinion.  Six  years  ago  there  was  a 
struggle  between  the  radical  and  conservative  wings  of 


THE  DIRECT  PRIMARY  89 

the  Republican  party  in  the  Wisconsin  primaries.  The 
conservatives  held  a  convention,  nominated  a  list  of  offi- 
cers, and  arranged  for  a  committee  to  have  charge  of  the 
campaign  in  the  primary  election.  The  radicals  disdained 
the  iniquitous  convention,  allowed  two  or  three  candi- 
dates to  contest  the  office  of  governor,  with  the  result 
that  the  conservatives  nominated  the  governor  by  a  plu- 
rality, although  at  that  time  a  majority  of  the  people 
favored  the  radicals,  as  was  evidenced  by  the  fact  that  a 
majority  of  the  votes  in  the  primary  were  cast  for  radi- 
cal candidates.  These  results,  which  are  by  no  means 
unusual,  would  have  been  impossible  in  a  convention 
where  the  balloting  would  continue  until  one  of  the  can- 
didates secured  at  least  a  majority  of  all  delegates 
present. 

One  of  the  reasons  commonly  urged  why  the  primary 
is  the  more  effective  instrument  of  popular  control,  is 
because  it  is  contended  that  a  much  larger  proportion  of 
the  people  participate  in  the  direct  primary  than  take 
part  in  the  selection  of  delegates  to  a  convention.  That 
there  is  a  much  larger  popular  participation  in  the  pri- 
mary than  in  the  convention  seems  amply  established  by 
the  evidence.  Undoubtedly  this  is  a  good  thing  in  itself, 
but  its  real  significance  must  be  determined  by  the  results 
achieved.  Where  there  is  almost  total  ignorance  regard- 
ing the  relative  merits  of  the  candidates,  with  the  excep- 
tion of  the  candidates  for  governor,  perhaps  the  larger 
popular  participation  loses  any  real  significance. 

The  last  aspect  of  the  question  of  popular  control  to 
be  considered  is  the  question  of  party  responsibility.  With 
so  many  candidates  to  be  nominated,  and  with  the  almost 
complete  ignorance  on  the  part  of  most  voters  regard- 
ing most  of  the  candidates,  party  responsibility  looms 
rather  large  as  a  means  of  popular  control.  Normally 
the  party  leaders  and  delegates  are  in  a  position  to  select 


90  POPULAR  GOVERNMENT 

a  good  ticket,  if  public  opinion  so  decrees.  Many  thought- 
ful  observers   have   long   felt   that   in   the   complexities 
of   modern    politics,    party    responsibility    afforded    the 
most  effective  and  practical  method  of  popular  control. 
Certainly  it  is  a  most  important  one,  in  view  of  the  condi- 
tions that  are  known  generally  to  prevail.  It  seems  obvious 
that  party  responsibility  will  be  a  more  potent  factor  in 
the  convention  system,  where  the  convention  is  composed 
of  the  party  leaders  selected  from  the  various  communi- 
ties of  the  state,  and  where  the  process  of  deliberation 
and  exchange  of  views  may  be  utilized,  and  the  counsel 
and  advice  of  the  most  astute  and  wisest  leaders  may  be 
secured,  than  in  a  direct  primary  where  those  responsible 
for  the  leadership  of  the  party  and  the  control  of  its 
destiny  do  not  occupy  a  position  of  such  commanding  in- 
fluence.   For  it  must  not  be  forgotten  that  progress  in  a 
democracy  depends  upon  the  leadership  of  the  few,  rather 
than  upon  the  popular  standards  of  mediocrity.    And  it 
is  in  this  leadership,  checked  by  real  sense  of  party  re- 
sponsibility to  the  public,  and  finally  endorsed  or  repudi- 
ated at  the  polls,  that  there  seems  to  be  the  best  promise 
of  genuine  popular  control  along  the  lines  of  constructive 
improvement.    Therefore   anything  that  detracts  from 
the  possibility  of  party  responsibility  seems  to  interfere 
materially  with  popular  control. 

Where  the  primary  law  provides  for  an  open  primary 
as  in  Wisconsin,  party  responsibility  tends  entirely  to 
disappear.  In  the  Wisconsin  primary  for  the  election  of 
delegates  to  the  national  convention  in  1920,  there  were 
two  lists  of  delegates  contending  for  the  election.  One 
group  were  the  LaFollette  delegates  and  the  other  group 
was  headed  by  Governor  Phillip.  The  LaFollette  dele- 
gates were  elected.  Shortly  afterwards,  Mr.  Victor  Ber- 
ger,  the  leading  socialist  in  the  state,  declared  that  since 


THE  DIRECT  PRIMARY  91 

the  socialists  had  had  no  men  in  which  they  were  inter- 
ested, the  socialists  had  entered  the  Republican  primaries 
and  voted  for  the  LaFollette  men.  An  analysis  of  the 
vote  bears  out  the  statement.  The  contest  was  sufficiently 
close  in  some  districts  that  the  socialist  vote  could  have 
changed  the  final  result.  Under  such  conditions  it  is  im- 
possible to  hold  the  Republican  party  responsible  for  a 
result  which  neither  the  managers  nor  the  members  of 
the  party  brought  about.  Under  our  complicated  electoral 
system,  the  loss  of  party  responsibility  is  a  matter  of 
more  than  passing  importance. 

Finally  let  us  examine  the  primary  as  an  instrument  for 
the  dethronement  of  the  political  boss,  and  the  abolition 
of  the  professional  politician.  As  previously  observed 
it  is  futile  to  talk  of  the  abolition  of  political  bosses  or 
leaders.  So  long  as  human  nature  remains  unchanged 
we  will  have  leadership  in  all  phases  of  human  affairs. 
The  hope  of  democracy  rests  in  the  political  leadership 
that  it  will  develop  and  stimulate.  Under  the  convention 
system,  the  leadership  is  more  or  less  definitely  identified 
with  the  party  organization,  and  operates  with  the  full 
understanding  that  unless  it  merits  popular  approval  at 
the  ballot  box,  its  power  is  lost  and  its  prestige  gone.  The 
life  of  political  leadership  is  thus  conditioned  upon  popu- 
lar approval.  But  under  the  direct  primary,  leadership 
becomes  irresponsible  and  difficult  to  locate.  The  owner 
of  a  metropolitan  press  may  provide  the  leadership  that 
controls,  but  unlike  the  party  leader,  he  is  free  from  pop- 
ular control.  So  long  as  his  paper  is  ably  edited  and  car- 
ries popular  supplements,  cartoons,  and  other  "features," 
his  circulation  will  increase,  regardless  of  how  incompe- 
tent may  have  been  the  candidates  that  he  placed  in  power. 
A  defeat  of  his  candidates  at  the  polls  does  him  no  mate- 
rial injury  while  defeat  may  ruin  the  career  of  the  party 


92  POPULAR  GOVERNMENT 

boss.  So  it  is  with  the  other  makers  and  hirers  of  pub- 
licity. They  operate  free  from  the  fear  that  their  political 
power  and  career  is  subject  to  popular  destruction,  while 
the  regular  party  boss,  operating  through  the  convention, 
must  forever  curry  popular  approval.  The  public  may 
be  indifferent  and  may  tolerate  inefficiency,  tyrannical 
methods,  and  corrupt  control  of  government,  but  it  is 
only  when  the  public  do  tolerate  it  that  the  boss  will 
dare  attempt  it,  for  in  his  life  and  in  his  profession  suc- 
cess at  the  polls  is  absolutely  indispensable  to  his  power. 
Professor  Henry  Jones  Ford  has  dealt  with  the  rela- 
tion of  the  primary  to  the  boss  in  an  instructive  way. 
"One  continually  hears,"  he  writes,  "the  declaration  that 
the  direct  primary  will  take  power  from  the  politicians 
and  give  it  to  the  people.  This  is  pure  nonsense.  Politics 
has  been,  is  and  always  will  be  carried  on  by  politicians, 
just  as  art  is  carried  on  by  artists,  engineering  by  engi- 
neers, business  by  business  men.  All  that  the  direct  pri- 
mary, or  any  other  political  reform,  can  do  is  to  affect 
the  character  of  the  politicians  by  altering  the  conditions 
that  govern  political  activity,  thus  determining  its  extent 
and  quality.  The  direct  primary  may  take  advantage  and 
opportunity  from  one  set  of  politicians  and  confer  them 
upon  another  set,  but  politicians  there  will  always  be  so 
long  as  there  is  politics.  The  only  thing  that  is  open  to 
control  is  the  sort  of  politicians  we  shall  have.  *  *  *  The 
direct  primary  does  not  remove  any  of  the  conditions  that 
have  produced  the  system,  but  it  intensifies  their  pressure 
by  making  politics  still  more  confused,  irresponsible  and 
costly.  In  its  full  application  it  is  the  most  noxious  of 
the  reforms  by  which  spoilsmen  are  generated,  for  it 
parallels  the  long  series  of  regular  elections  with  a  cor- 
responding series  of  elections  in  every  regular  party  or- 
ganization. The  more  elections  there  are,  the  larger 


THE    DIRECT  PRIMARY  93 

becomes  the  class  of  professional  politicians  to  be  sup- 
ported by  the  community."1 

Mr.  Edgar  T.  Brackett  touched  upon  a  very  important 
aspect  of  this  subject  when  he  declared  that  in  "a  con- 
vention of  a  hundred  members,  no  boss  on  earth  can 
carry  it  against  fifty-one  of  such  members,  if  they  have 
serious  wishes  on  the  subject.  If  an  elector  has  no  serious 
notions  on  the  subject,  nothing  will  protect  him.  And, 
after  all,  I  am  not  sure  but  that  it  all  comes  down  to  hav- 
ing serious  notions  and  being  willing  to  fight  for  them. 
There  is  no  method  of  procedure  that  will  make  a  lion 
into  a  sheep,  or  a  sheep  into  a  lion.  And  I  want  to  lay 
it  down  as  a  postulate,  that  nobody  is  ever  really  bossed 
politically,  who,  way  down  in  his  heart  (whatever  he 
may  say  about  it)  is  not  willing  to  be  bossed."2 

From  the  foregoing  it  appears  that  the  direct  primary 
cannot  abolish  the  political  boss  and  the  professional  poli- 
tician. They  will  flourish  under  either  system.  More- 
over the  political  boss  controls  no  one  who  is  not  willing 
to  be  controlled.  The  real  and  important  question  is 
then,  under  which  system  can  and  will  the  party  leader 
or  boss  give  the  best  service  to  the  community?  It  seems 
clear  that  this  would  be  under  the  system  that  holds  him 
most  completely  subject  to  popular  control,  and  which 
makes  real  public  service  the  most  nearly  dominant  mo- 
tive of  his  career.  It  seems  equally  clear  that  this  system 
is  the  convention  system,  where  the  professional  politi- 
cian and  leader  must  stand  or  fall  by  the  people's  ver- 
dict. For  in  the  direct  primary,  the  dominant  power  may 
be  vested  in  a  man  who  owns  a  string  of  papers,  but 
whom  the  public  can  in  no  wise  touch.  For  example,  is  it 
better  to  have  the  delegates  to  the  national  Republican 

a"The  Direct  Primary,"  in  North  American,  Vol.  190,  pp.  1-14. 

3  Proceedings  of  the  Academy  of  Political  Science,  1913,  pp.  220-228. 


94  POPULAR  GOVERNMENT 

convention  instructed  In  preferential  primaries,  by  a 
plurality  of  voters,  the  great  majority  of  which  have 
never  made  a  careful  study  of  the  lives  of  the  competing 
candidates,  but  many  of  whom  have  unconsciously  ac- 
quired decided  preferences  through  the  clever  cartoons 
and  innuendoes  of  the  press,  without  having  a  rational 
opinion  of  their  own,  or  to  leave  these  delegates  and  their 
leaders  to  thrash  out  the  problem,  aided  by  the  counsel 
and  advice  of  the  ablest  leaders  of  the  party,  the  political 
careers  of  whom  depend  largely  upon  the  wisdom  and 
sagacity  of  their  choice.  In  other  words,  should  the  dom- 
inant force  be  that  of  irresponsible  newspaper  publishers 
throughout  the  country,  or  the  judgment  and  counsel  of 
the  party  leaders  who  are  best  able  to  judge  and  who 
have  their  whole  careers  at  stake? 

Much  confusion  has  resulted  from  the  partisans  of  one 
system  attributing  all  the  evils  that  inevitably  flow  from 
public  indifference  to  alleged  defects  of  the  other  sys- 
tem. All  the  evil  things  said  of  the  convention  are  doubt- 
less possible  where  the  public  is  indifferent  to  what  takes 
place.  The  same  is  true  of  the  direct  primary  under  like 
conditions.  But  such  matters  are  not  in  point.  The  real 
question  is  which  system  affords  the  public  the  most  ade- 
quate and  efficient  machinery  for  the  appointed  task,  when 
the  public  is  aroused  and  determined  that  it  will  control. 
It  makes  no  difference  how  strongly  aroused  the  public 
may  become,  how  intensely  interested  they  may  be,  they 
will  never  reach  the  point  where  any  considerable  number 
will  have  the  basis  for  an  intelligent  estimate  of  the  rela- 
tive qualifications  of  the  competing  candidates  for  public 
office,  under  an  electoral  system,  where  a  large  number 
of  public  offices,  some  of  them  requiring  technical  and 
professional  training,  are  left  to  be  filled  by  popular  elec- 
tion. In  such  a  task  there  is  no  public  opinion  that  can 


THE  DIRECT  PRIMARY  95 

operate  directly,  and  yet  that  is  the  only  rational  assump- 
tion upon  which  the  direct  primary  may  be  defended,  an 
assumption  that  is  negatived  by  both  sound  theory  and 
unquestioned  facts.  That  means  that  public  opinion,  if  it 
is  to  function  at  all,  in  such  a  difficult  task,  must  function 
indirectly  through  the  choice  of  local  leaders,  who,  in  a 
representative  convention,  will  make  the  nominations  that 
are  required.  These  men,  most  of  whom  will  be  profes- 
sional politicians,  will  be  best  acquainted  with  the  various 
candidates  for  office,  will  have  an  opportunity  to  meet 
them,  and  to  confer  with  others,  mindful  all  the  while 
that  their  political  future  and  their  party  success  depend 
upon  the  verdict  of  the  people.  Party  conventions,  like 
all  other  forms  of  representative  government,  may  occa- 
sionally become  corrupt,  may  become  neglectful  of  the 
public  interest  and  may  defy  the  public  will,  but  they  do 
so  at  their  peril,  and  the  people  have  an  effective  remedy 
when  they  administer  the  sting  of  a  political  defeat.  But 
when  the  complicated  nature  of  modern  politics  makes 
demands  upon  the  public  in  excess  of  their  general  inter- 
est, strength,  or  knowledge,  human  experience  shows  that 
if  those  demands  are  intelligently  met,  it  will  be  only 
through  the  aid  of  those  whose  special  interest,  training, 
and  aptitude  has  prepared  them  adequately  for  the  task, 
and  in  applying  to  them,  in  the  performance  of  their 
duties,  the  doctrine  of  strict  accountability.  Otherwise 
these  functions  will  be. left  to  the  mercy  of  accident,  whim, 
or  caprice;  the  stimulating  and  invaluable  forces  of  re- 
sponsible leadership  will  be  largely  squandered;  and  the 
voice  of  mediocrity  will  be  likely  to  prevail, 


SUGGESTIVE    QUESTIONS    FOR 

CHAPTER  IV 

rt)  A  law  was  recently  proposed  in  a  Western  state  to 
abolish  all  political  parties,  candidates  for  office  to  be 
nominated  by  non-partisan  petition.  Discuss  the  wisdom 
of  thq  proposition  as  applied  to  state  officers. 

(oD  Discuss  the  effect  of  a  direct  primary  upon  the 
principle  of  party  responsibility. 

til)    What  is  the  connection  between  party  responsi- 
bifit^and  popular  government ? 

What  necessary  part  does  the  political  boss  play 
\e  affairs  of  popular  government?   Illustrate. 

It  has  been  suggested  that  direct  primaries  be  abol- 
isftfcd  and  that  a  law  be  passed  enabling  ten  per  cent,  of 
the  party  members  to  demand  a  party  referendum  on  the 
ticket  nominated  by  the  party  convention.  Other  candi- 
dates could  be  placed  on  the  ballot  to  contest  the  nomina- 
tion with  those  nominated  by  the  convention,  by  petition. 
Disguss  the  proposition. 

\Vli  It  has  been  said  that  a  primary  election  is  a  splen- 
did device  to  eliminate  a  conspicuously  unfit  man.  Discuss 
the  statement. 

VII.  It  has  been  customary  in  Wisconsin  for  one  of 
theH^actions  of  the  Republican  party  to  hold  a  state  con- 
vention composed  of  delegates  selected  from  over  the 
state  to  agree  upon  candidates  to  support  at  the  primary 
election.    This  has  been  criticized  as  improper  and  con- 
trary to  popular  government.    Discuss. 

VIII.  Is  there  any  vital  relation  between  party  nomi- 
nating methods  and  the  short  ballot? 

96 


SUGGESTIVE  QUESTIONS  97 

A  prominent  newspaper  in  a  recent  editorial  de- 
clared  that  to  establish  a  party  test  in  the  direct  primary 
law  would  interfere  with  the  popular  control  of  govern- 
mejit.  Discuss. 

Pp  It  has  been  contended  that  the  two  party  system  as 
found  in  England  and  the  United  States  does  not  allow 
sufficient  expression  of  public  opinion  and  that  several 
political  parties  would  make  the  government  more  re- 
sponsive. Discuss. 


CHAPTER  V 

THE    PRESIDENTIAL   PRIMARY 

THE  framers  of  the  Constitution  did  not  contemplate  the 
popular  election  of  the  President  of  the  United  States, 
nor  did  they  foresee  the  political  significance  that  would 
be  attached  to  the  presidential  office.  Their  plans  con- 
templated an  election  by  an  electoral  college,  the  mem- 
bers of  which  were  to  be  elected  by  the  various  states  in 
such  manner  as  the  legislatures  might  direct.  Such  a 
scheme  would  not  require  the  elaborate  nominating  ma- 
chinery necessitated  by  direct  methods  of  popular  choice. 
But  this  scheme  soon  ceased  to  operate  as  it  had  been  in- 
tended. Political  groups  soon  sought  to  control  the  presi- 
dential election  by  bringing  forth  candidates  before  the 
election,  and  suggesting  a  list  of  electors  pledged  to  their 
support,  with  the  result  that  direct  popular  election  by 
states  quickly  ensued. 

This,  together  with  the  growing  political  significance 
of  the  office  and  its  organic  relations  with  Congress,  has 
made  a  nation-wide  party  organization  indispensable  to 
the  popular  control  of  the  federal  government.  Since  the 
days  of  Jackson,  the  presidency  has  generally  carried  with 
it  the  assumption  of  political  leadership.  The  House  of 
Representatives  has  generally  been  engrossed  in  local  and 
district  matters  rather  than  in  those  of  national  concern, 
while  the  Senate  has  steadily  declined  in  popular  confi- 
dence. Add  to  this  the  further  consideration  of  the 
greater  ease  with  which  the  public  can  watch  the  legisla- 
tive program  of  the  President  and  its  more  spectacular 
and  dramatic  appeal,  and  the  reasons  for  his  political 

98 


THE  PRESIDENTIAL  PRIMARY  99 

leadership  become  obvious.  When  a  party  is  elected  to 
power,  the  people  inevitably  look  to  the  President,  and 
not  to  Congress,  for  their  legislative  program  and  the  re- 
demption of  the  party  pledges.  They  are  generally  too 
impatient  to  watch  the  roll  call  of  Congress,  and  apply 
the  political  pressure  at  the  proper  point,  for  it  is  much 
easier  and  more  interesting  to  hold  the  President  re- 
sponsible for  all  that  follows.  This  attitude  was  naively 
evidenced  by  a  typical  remark  of  a  distinguished  citizen 
wTho  declared  in  1912  that  he  was  supporting  Mr.  Roose- 
velt because  he  was  the  only  man  who  could  "run  that 
bunch  at  Washington."  As  a  result,  the  point  of  con- 
tact between  the  public  and  the  federal  government  is 
almost  entirely  through  the  President.  While  the  people 
directly  elect  the  members  of  both  houses  of  Congress, 
they  have  found  it  simpler,  easier,  and  more  effective  to 
seek  the  results  they  want  through  the  President  and  his 
party  than  through  the  discriminating  choice  of  congress- 
men. It  places  a  tremendous  burden  upon  the  President 
and  a  great  responsibility  upon  the  party  organization, 
but  it  has  been  reasonably  successful. 

The  matter  of  nominating  a  candidate  for  the  presi- 
dency, the  drafting  of  the  platform  upon  which  he  will 
run,  and  the  selection  of  the  national  party  organization, 
thus  become  matters  of  the  greatest  national  concern. 
Since  about  1840  these  functions  have  been  performed  by 
national  party  conventions,  composed  of  delegates  from 
every  state,  as  well  as  of  representatives  from  territories 
and  colonial  possessions.  These  delegates  have  generally 
been  allotted  among  the  states,  two  for  each  representa- 
tive and  senator,  and  elected  either  from  the  state  or  the 
congressional  district  as  the  unit  of  representation.  These 
conventions  have  chosen  the  candidates  for  the  presidency 
and  vice-presidency  and  adopted  the  party  platform.  The 


100  POPULAR  GOVERNMENT 

conduct  of  the  campaign  and  the  administration  of  na- 
tional party  affairs  is  vested  in  the  national  central  com- 
mittee, composed  of  one  member  from  each  state,  the 
state  delegations  to  the  national  convention  selecting  the 
state's  representative  on  this  body. 

That  grave  abuses  should  develop  in  connection  with 
party  machinery,  subjected  to  the  tremendous  stress  and 
strain  of  national  politics,  is  inevitable.  These  abuses 
in  national  politics  are  not  unlike  those  that  developed 
in  connection  with  the  party  machinery  of  the  state, 
and  which  have  been  very  vividly  described  by  Mr. 
Francis  W.  Dickey.  "It  is  alleged  that  the  party  com- 
mittees, which  constitute  the  executive  side  of  the  party 
machinery  and  which  are  composed  of  county  or  district 
leaders,  are  constantly  scheming  to  secure  the  election  of 
delegates  to  the  conventions  upon  whom  they  can  count  to 
serve  their  purposes.  Assisted  by  an  army  of  tributary 
politicians,  beholden  to  them  for  favors  or  in  expectation 
of  future  rewards,  and  supported  financially  by  various  in- 
terests seeking  to  turn  the  party  organization  to  their 
own  advantage,  they  are  enabled  to  pack  conventions  with 
supporters  upon  whom  they  can  confidently  rely  to  do 
their  bidding.  Even  should  they  fail  to  secure  a  conven- 
tion whose  personnel  is  exactly  of  the  pliable  kind  to  suit 
their  purposes,  the  resources  of  the  leaders  are  by  no 
means  exhausted.  For  a  determined  coterie  of  wire- 
pullers to  obtain  control  of  the  temporary  organization  of 
a  convention,  and,  with  that  advantage,  of  the  permanent 
organization,  is  no  difficult  matter — especially  when,  as 
usually  happens,  their  opponents  work  to  no  common 
purpose.  A  friendly  committee  on  credentials  will  often 
ensure  organization  control  by  settling  a  sufficient  number 
of  contests  in  favor  of  the  organization  contestants. 
When  it  is  considered  how  little  attention  is  paid  by 


THE  PRESIDENTIAL  PRIMARY  !01 

voters  to  the  election  of  delegates  to  nominating  conven- 
tions and  how  little  an  understanding  the  average  voter 
has  of  the  procedure  of  a  convention,  one  does  not  wonder 
that  the  unscrupulous  and  clever  politician  succeeds  so 
well."1 

To  meet  these  abuses,  an  attempt  has  been  made  to 
apply  the  principle  of  the  primary  election  to  the  national 
nominations.  The  Democratic  national  convention  in 
1912  adopted  the  principle  of  the  primary  election  of 
delegates  to  the  national  convention,  either  under  party 
rules  or  state  law.  Subsequently  the  Republican  party 
adopted  a  rule,  recognizing  the  primary  election  of  dele- 
gates when  provided  for  by  state  authority.  The  Taft- 
Roosevelt  controversy  in  1912  led  to  the  adoption,  in  one 
form  or  another,  of  the  presidential  primary,  and  by 
1916,  twenty-one  states  had  enacted  laws  providing  for 
this  system. 

These  laws  differed  greatly  and  may  for  practical  con- 
venience be  divided  into  three  groups.  The  first  group 
provided  for  the  direct  election  of  delegates  to  the  na- 
tional conventions,  either  by  congressional  districts  or  by 
the  states,  but  making  no  provision  for  any  direct  expres- 
sion of  popular  choice  of  candidates  for  the  presidency. 
The  second  group  of  states  provided  for  a  preferential 
vote  as  to  choice  for  President,  but  made  no  provision  to 
bind  the  delegates  to  vote  according  to  the  preference 
there  expressed.  The  third  group  provided  for  a  preferen- 
tial vote  on  choice  of  candidate  for  presidency,  and  sought 
to  bind  the  delegates  to  the  preferential  vote.  A  fourth 
suggestion  was  made  by  President  Wilson  in  his  first  an- 
nual message  to  Congress  in  December,  1913,  in  which 
he  urged  a  federal  law  which  would  provide  for  the  nom- 

'"The  Presidential  Preference  Primary,"  in  Amer.  Pol.  Sci.  Rev., 
Vol.  IX,  p.  471. 


10J  .  POPULAR  GOVERNMENT 

ination  of  candidates  by  the  direct  vote  of  the  people 
"without  the  intervention  of  nominating  conventions." 
This  recommendation,  however,  never  received  serious 
consideration. 

The  first  group  of  laws  has  not  encountered  great  op- 
position, especially  where  the  congressional  district  is 
made  the  unit  for  the  selection  of  delegates.  Where  the 
state  is  made  the  unit,  then  it  is  open  to  much  the  same 
objections  as  the  state-wide  primary,  viz.,  that  it  is  im- 
possible for  the  party  members  of  an  entire  state  to  have 
the  information  and  acquaintance  essential  to  make  an 
intelligent  or  even  a  conscious  choice,  and,  therefore,  that 
the  election  does  not  and  cannot  represent  the  true  opin- 
ion of  the  public.  In  other  words,  the  state  is  too  large 
a  unit  for  the  successful  operation  of  real  representative 
government. 

It  is  the  second  and  third  groups  and  President  Wil- 
son's suggestion  that  have  aroused  the  most  violent  op- 
position and  to  which  we  shall  devote  our  attention.  All 
of  these  suggestions  raise  the  issue,  more  or  less  directly, 
as  to  whether  the  selection  of  party  candidates  for  the 
presidency  should  be  made  directly  through  some  form  of 
preferential  primaries  or  indirectly  through  some  form 
of  the  convention  system.  In  the  nomination  of  presiden- 
tial candidates,  will  the  principle  of  direct  democracy  or 
of  representative  government  yield  the  best  results? 

This  raises  the  same  fundamental  problem  as  that  pre- 
sented by  the  direct  primary  in  state  politics,  and  many 
of  the  observations  made  in  the  preceding  chapter  will 
apply  here  with  equal  force.  There  are,  however,  cer- 
tain important  differences  which  we  should  note  in 
this  connection.  Two  of  these  differences  operate  in 
favor  of  the  preferential  primary,  tending  to  make  a 
direct  vote  more  practicable  in  the  case  of  presidential 


THE  PRESIDENTIAL  PRIMARY  103 

primaries  than  in  state  nominations.  The  first  difference 
is  the  existence  of  the  short  ballot  in  the  federal  govern- 
ment, with  the  result  that  there  are  only  two  federal 
officers  to  be  nominated  and  elected.  This  means  much 
less  opportunity  for  wirepulling  and  intrigue  in  the  con- 
vention than  where  there  is  a  long  list  of  candidates  for 
many  offices,  with  the  consequent  mass  of  political  manip- 
ulation among  the  great  number  of  candidates,  that  has 
so  frequently  characterized  the  deliberations  of  state 
nominating  conventions.  It  is  not  unusual  in  state  con- 
ventions to  have  a  candidate  for  office  from  every  section 
of  the  state.  The  delegations  from  each  section  fre- 
quently come  pledged  to  their  candidate,  and  they  will 
vote  on  all  other  candidates  in  the  way  that  will  bring 
the  best  results  to  their  local  man,  which  means  that  the 
deliberations  of  the  convention  are  largely  determined 
by  the  political  logrolling,  deals,  and  trades  that  the 
various  campaign  managers  are  able  to  arrange.  While 
this  undoubtedly  tends  to  make  the  national  convention 
a  better  deliberative  body  than  the  state  convention,  at 
the  same  time  it  makes  a  preferential  vote  on  the  candi- 
dates much  simpler  and  much  more  likely  to  be  effective. 
;  Also  it  is  much  more  likely  that  there  may  be  the  basis 
of  a  public  opinion,  regarding  the  qualifications  for  the 
different  candidates  for  the  head  of  the  ticket,  than  for 
the  other  less  important  offices,  that  attract  less  attention 
and  draw  a  class  of  candidates  much  less  widely  known. 
In  other  words,  if  the  short  ballot  prevailed  in  the  states, 
and  the  people  were  asked  to  nominate  candidates  only 
for  governor  or  lieutenant  governor,  the  greatest  argu- 
ments against  the  direct  primary  would  disappear,  for  the 
existence  of  a  public  opinion  upon  that  question  is  occa- 
sionally possible.  On  the  other  hand,  some  of  the  worst 
objections  to  the  state  convention  would  also  disappear, 


104  POPULAR  GOVERNMENT 

as  a  result  of  the  simplification  of  the  task,  and  the 
greater  publicity  that  would  attach  to  the  proceedings. 

The  second  difference  operating  in  favor  of  the  prefer- 
ential primary,  is  the  greater  publicity  and  interest  that 
attaches  to  the  candidates,  when  there  are  only  the  candi- 
dates for  one  office  to  consider.  To  just  the  extent  to 
which  this  is  true,  public  opinion  has  a  greater  opportunity 
to  function,  and  it  is  not  compelled  to  function  on  a  long 
list  of  other  candidates  about  whom  the  overwhelming 
majority  of  the  people  are  absolutely  ignorant. 

On  the  other  hand,  there  are  two  differences  between 
the  state  and  national  primaries  that  operate  to  make 
the  former  the  more  successful  and  practicable.  The  first 
difference  is  the  wider  area  over  which  the  national 
primary  must  operate.  It  is  conceivable  that  the  peo- 
ple in  California  may  be  intelligent  and  yet  not  in- 
formed upon  the  presidential  qualifications  of  certain  very 
able  men  from  New  England,  Virginia,  or  Ohio,  unless 
it  happens  that  those  same  men  have  unusual  publicity 
facilities  at  their  control,  and  then  it  will  be  the  publicity, 
and  not  a  fair  estimate  of  relative  worth,  that  is  likely 
to  prevail.  And  yet  the  presidential  primary  implies  the 
ability  of  the  voters  of  each  state  to  pass  judgment  upon 
the  available  candidates  from  all  the  states.  The  peculiar 
difficulties  of  this  aspect  of  the  situation  will  be  discussed 
later. 

The  other  disadvantage  of  the  national  over  the  state 
primary  and  the  result  of  the  one  just  mentioned,  is  the 
"favorite  son"  movement.  Because  the  people  are  so  unin- 
formed regarding  the  relative  merits  of  all  the  possible 
candidates,  they  have  generally  been  quite  willing  to  cast 
their  preferential  votes  for  some  favorite  son.  This  has 
been  frequently  done  when  the  public  knew  perfectly  well 
that  the  candidate  for  whom  they  voted  had  no  chance 


THE  PRESIDENTIAL  PRIMARY  105 

|  whatsoever.  This  gives  to  the  favorite  son  the  strategic 
| advantage  of  having  a  group  of  delegates  which  he  may 
perhaps  "deliver"  at  the  psychological  moment,  and  in- 
troduces a  new  source  of  intrigue  and  political  bargaining 
into  the  convention  system.  Where  a  state  deliberately 
rotes  in  favor  of  a  favorite  son  with  a  hopeless  cause,  it 
is  generally  done  as  a  mere  courtesy  to  the  local  states- 
man, or  in  the  desire  to  defer  to  his  discretion  in  the 
selection  of  the  candidate.  In  the  latter  case  it  is  an  indi- 
rect and  bunglesome  way  of  working  out  the  representa- 
tive principle. 

With  these  differences,  which  distinguish  the  presiden- 
tial from  the  state-wide  primaries,  in  mind,  we  shall  now 
consider  the  operation  of  the  former,  and  its  actual  re- 
sults as  evidenced  by  its  use  in  three  presidential  contests. 
The  first  great  problem  is  to  determine  the  relation  of  the 
primary  to  public  opinion.  Can  it  be  said  that  the  prim- 
aries have  registered  a  true  opinion  in  the  choice  of  candi- 
dates? The  ordinary  argument  here  is  that  if  the  people 
can  register  a  true  opinion  by  popular  vote  in  the  election, 
why  cannot  they  do  so  in  the  primary?  The  answer  is 
rather  obvious.  In  the  election  of  President,  there  are 
generally  only  two  major  candidates,  from  whom  the 
overwhelming  majority  of  the  people  make  their  choice. 
These  candidates  are  nominated  about  four  months  be- 
fore the  election.  In  the  meantime  all  the  resources  of 
the  party  organizations  are  devoted  to  giving  to  the  can- 
didates the  fullest  possible  degree  of  publicity,  with  the 
result  that  by  the  time  the  election  comes,  there  are  very 
few  persons  who  have  not  had  reasonable  opportunities 
to  form  some  kind  of  judgment  or  opinion.  Contrast  this 
with  the  situation  in  the  pre-convention  campaigns  of 
1920,  when  at  the  time  of  the  convention,  many  of  the 
candidates  were  not  known  outside  the  borders  of  their 


106  POPULAR  GOVERNMENT 

own  states.  To  suppose,  in  the  latter  case,  that  a  nation- 
wide preferential  vote  would  have  reflected  a  true  opinion 
as  to  the  relative  merits  of  the  candidates  would  seem  a 
violent  supposition.  When  there  are  only  two  candidates 
for  the  nomination  as  in  1912,  a  general  primary  might 
be  expected  to  give  reasonably  satisfactory  results,  but 
such  situations  are  likely  to  prove  very  rare.  For  with  the 
presidential  primaries,  the  favorite  sons  have  probably 
come  to  stay  as  part  of  the  political  setting. 

The  protest  vote  is  another  factor  that  enters  into  a 
primary  election  that  prevents  it  from  registering  a  real 
public  opinion  on  the  choice  of  candidates.  If  one  of  the 
candidates  shows  radical  tendencies  and  seeks  successfully 
to  exploit  all  the  various  grievances  of  different  groups 
against  the  existing  conditions,  he  may  win  a  plurality  of 
the  votes  from  heterogeneous  groups,  and  yet  such  a 
popular  verdict  would  represent  the  very  antithesis  of 
true  opinion.  This  is  the  explanation  given  by  Mr.  Tal- 
cott  Williams  to  the  vote  cast  for  Senator  Johnson  in  the 
primaries  of  1920.  "The  progressive  vote  is  now  for 
Johnson,  but  it  is  not  a  Johnson  vote.  It  stands  for  dis- 
content with  the  'regular'  republican  policy,  disappoint- 
ment over  the  barren  record  of  the  Republican  majority 
in  the  Senate  and  House,  anger  at  the  soldier's  'bonus' 
extravagance  and  the  failure  to  provide  for  the  disabled, 
over  the  foolish  fruitless  conduct  of  state  affairs  and  the 
disgraceful  outcome  of  a  Republican  majority  at  Albany. 
Where  has  the  Republican  party  given  reason  for  a  vote 
for  its  present  managers? 

uThe  'German'  vote,  the  Sinn  Fein,  the  'anti-war'  fac- 
tions, these  Johnson  had.  His  vote  is  noble  and  ignoble, 
national,  extra-national,  anti-national,  but  its  strength  is 
the  deep  tide  of  desire  and  demand,  swelling  over  all  the 
land,  for  a  solution  of  the  real  problems  of  the  hour."1 

luThe  Republican  Primaries,"  in  The  Independent,  Vol.  102,  p.  208. 


THE  PRESIDENTIAL  PRIMARY  107 

Perhaps  the  current  tendency  to  treat  the  primaries 
as  opportunities  for  practical  joking  is  worthy  of  pass- 
ing remark,  in  connection  with  the  efficiency  of  the  pri- 
mary to  register  real  opinion.  In  1920  the  names  of  un- 
known persons  were  filed  as  candidates  for  the  vice- 
presidency  in  South  Dakota  and  Oregon,  and  for  the 
presidency  in  Michigan.  One  of  the  unknown  candidates 
in  Oregon  was  "Elwood  Washington."  His  boosters 
claim,  with  quiet  humor,  that  he  is  a  descendant  of  the 
Father  of  His  Country.  In  1916,  a  Mr.  Robert  G.  Ross, 
a  genial  livery  stable  proprietor  of  Lexington,  Nebraska, 
received  between  15,000  and  20,000  votes  for  President 
in  the  Republican  and  Democratic  primaries  of  that  year. 

Another  difficulty  with  the  primaries  giving  effective 
expression  to  public  opinion,  is  found  in  some  of  the  ill- 
considered  features  of  the  laws  themselves.  For  instance 
the  Oregon  law  provides  for  the  popular  election  of  dele- 
gates by  congressional  districts,  but  pledges  them  to  vote 
according  to  the  preferential  vote  throughout  the  state. 
The  result  was  that  in  1912  Roosevelt  received  the  pref- 
erential vote,  but  the  majority  of  the  Taft  delegates  were 
elected  in  the  districts.  In  1920  Senator  Johnson  received 
the  preferential  endorsement,  but  the  delegates  elected 
were  hostile  to  his  interests.  Similar  difficulties  have  de- 
veloped in  other  states,  although  these  particular  evils 
may  be  avoided  by  the  adoption  of  primary  laws  that  are 
sanely  and  intelligently  drafted,  so  that  the  election  of 
delegates  and  the  preferential  votes,  intended  to  bind 
them,  should  be  based  upon  the  same  political  unit. 

The  tremendous  importance  attached  by  political  man- 
agers to  success  in  the  states  holding  the  first  primaries 
indicates  what  a  large  part  mere  suggestion  and  publicity 
play  in  the  preferential  voting.  No  better  evidence  of 
this  could  be  desired  than  the  frantic  efforts  of  politicians 


108  POPULAR  GOVERNMENT 

to  secure  an  initial  success  in  the  "opening"  states.  The 
moral  effect  of  such  preliminary  triumphs  is  so  great 
that  no  energy  or  expense  is  spared.  The  Nation,  June  6, 
1912,  declared  that  in  this  struggle  "all  the  political 
machinery  and  sinews  of  war  are  moved  from  one  state 
to  another,  like  a  circus  on  its  travels.  *  *  *  The  danger 
is  that  we  shall  have  a  recurrence  of  the  old  evil  of  'Octo- 
ber States/  when  Ohio  and  Indiana  were  flooded  with 
money  and  overrun  with  politicians,  while  the  electorate 
was  debauched  all  for  the  sake  of  'pointing  the  way  for 
November.5  n  Four  years  later,  on  April  5,  the  Outlook 
described  how  "the  flying  squadrons  of  partisans,  in- 
spired by  the  atmospheric  influence  of  the  results  in  one 
state,  rush  on  to  another  state  to  accentuate  artificial 
sentiment  there. "  While  these  statements  may  be  exag- 
gerated, they  indicate  with  reasonable  accuracy  the  im- 
portant role  played  by  suggestion,  caprice,  and  accidental 
factors.  Under  such  conditions  it  can  scarcely  be  con- 
tended that  the  popular  pluralities  that  are  registered  on 
such  occasions  necessarily  express  a  real  opinion. 

We  thus  find  a  formidable  array  of  evidence  to  the 
effect  that  preferential  primaries  do  not  register  a  true 
public  opinion  in  the  choice  of  presidential  candidates. 
This  means  that  other  factors  than  rational  processes  of 
thought  and  enlightened  judgments  of  fact  tend  to  domi- 
nate in  such  a  choice.  What  are  the  results  of  primary 
votes  under  such  circumstances?  What  effect  does  it  have 
upon  the  type  of  men  selected,  upon  the  processes  of 
popular  control,  and  how  far  does  it  tend  to  do  away  with 
the  evils  of  the  boss?  These  are  three  questions  that  now 
require  our  consideration. 

That  the  primary  tends  to  place  an  undue  emphasis 
upon  men  who  enjoy  unusual  publicity  facilities  is  scarcely 
open  to  doubt.  That  good  publicity  and  able  statesman- 


THE  PRESIDENTIAL  PRIMARY  109 

ship  always  go  hand  in  hand  would  scarcely  be  contended. 
Mr.  Henry  Ford,  who  won  the  Republican  primaries  in 
Michigan  in  1916  and  ran  a  close  second  in  Nebraska  in 
the  same  year,  is  an  excellent  example  of  the  importance 
played  by  publicity.  Under  the  convention  system  he 
could  never  have  captured  the  Republican  delegations 
from  these  states,  for  whatever  excellent  things  may 
properly  be  said  of  Mr.  Ford,  he  is  not  to  be  taken  seri- 
ously as  a  presidential  candidate. 

In  the  Republican  convention  of  1920  the  two  leading 
candidates,  Major  General  Leonard  Wood  and  the 
Governor  of  Illinois,  Mr.  Frank  L.  Lowden,  both  men 
of  distinguished  records  in  the  public  service,  found  it  nec- 
essary to  spend  such  large  sums  of  money  in  securing 
delegates  outside  of  their  own  states,  that  when  the  con- 
vention met,  the  prejudice  against  the  use  of  such  vast 
sums  of  money  was  so  great  that  it  was  a  very  influential 
factor  in  their  defeat.  Though  these  two  men  had  won 
many  more  delegates  than  the  rest,  they  were  defeated, 
because  they  used  the  only  means  possible,  under  a  prefer- 
ential primary,  where  the  competition  is  keen,  to  prove 
their  cause  to  the  people  and  to  win  their  popular  sup- 
port. Investigations  by  a  Senate  committee  showed  that 
one  candidate  had  expended  over  $1,000,000  and  the 
other  over  $400,000.  It  was  not  charged  that  the  money 
was  dishonestly  or  illegally  expended,  and  there  seems 
no  reason  to  think  that  it  was.  Nevertheless  the  result 
seems  to  place  a  tremendous  premium  upon  wealth,  and 
to  disqualify  from  office  those  who  do  not  enjoy  large 
fortunes  or  the  support  of  wealthy  friends.  The  result 
was  that  the  candidates  who  took  the  primary  laws  in 
good  faith  carried  on  campaigns  for  popular  support, 
sought  to  bring  their  claims  to  the  attention  of  the  voters 
of  the  different  states,  and  staged  a  nation-wide  cam- 


110  POPULAR  GOVERNMENT 

paign  of  publicity  (which  was  necessary  if  the  people 
were  to  vote  intelligently  upon  their  respective  merits), 
were  defeated  for  their  pains.  If  this  obvious  evil  is  to 
be  removed,  it  will  be  only  by  prohibiting  private  con- 
tributions and  expenditures,  an  almost  impossible  task, 
and  providing  for  the  legitimate  expenses  of  the  candi- 
dates out  of  public  funds. 

As  a  means  of  securing  popular  control  over  the  selec- 
tion of  candidates,  the  primary  is  effective  to  just  the 
extent  that  it  registers  a  real  opinion  on  the  choice  of 
candidates.  We  have  already  seen  how  infrequently  that 
is  done  and  the  tremendous  difficulties  that  bar  the  way. 
In  the  Republican,  campaign  of  1916  there  were  only  two 
candidates  for  the  presidency  for  whom  there  seemed  to 
be  any  popular  demand.  Neither  Mr.  Roosevelt  nor  Mr. 
Hughes  would  permit  their  names  to  go  before  the  peo- 
ple in  the  primary  states.  On  the  other  hand,  there  were 
a  number  of  favorite  sons  who  won  the  primaries  in  their 
own,  and  occasionally  in  neighboring  states.  Had  there 
been  at  that  time  the  kind  of  nation-wide  preferential 
primary  recommended  by  President  Wilson,  some  favor- 
ite sons  would  have  been  nominated  by  a  bare  plurality 
of  the  vote,  which  could  not  possibly  have  reflected  any 
true  opinion.  As  it  was,  the  candidate  of  the  convention, 
Mr.  Hughes,  did  represent  a  real  opinion  among  the 
rank  and  file  of  his  party.  He  was  nominated  through 
the  influence  of  the  party  leaders,  despite  the  protests  of 
the  favorite  sons,  because  the  party  managers,  playing 
true  to  form,  wanted  a  candidate  that  they  thought  was 
sure  to  win..  It  was  to  their  selfish  and  partisan  interest 
to  interpret  accurately  the  real  opinion  of  the  public  in 
order  that  they  might  curry  popular  favor.  Thus  the 
voice  of  public  opinion,  thwarted  for  the  time  being  by 
favorite  sons  in  the  presidential  primaries,  finally  tri- 


THE  PRESIDENTIAL  PRIMARY  111 

umphed  through  the  victory  of  political  bosses.  This  does 
no  mean  necessarily  that  the  best  man  was  nominated, 
but  merely  that  public  opinion  finally  became  articulate 
through  the  much  despised  power  of  the  party  leaders. 
The  danger  in  such  situations  is  that  the  power  of  the 
favorite  sons  may  be  so  great,  that  by  political  manipula- 
tion and  deals  they  may  be  able  to  defeat  the  wishes  of 
the  great  leaders,  who  have  both  the  perspicacity  and  the 
common  sense  to  select  a  candidate  whom  the  people 
want. 

The  effect  of  the  primary  in  curbing  the  evils  of  the 
political  boss  should  now  receive  some  consideration,  as 
this  is  one  of  the  arguments  most  frequently  relied  upon 
in  its  defense.  Mr.  Dickey  states  the  case  as  follows : 
"The  temptation  of  the  political  party  is  to  view  or- 
ganization as  an  end  in  itself.  As  a  result  the  party  will 
no  longer  exist  as  an  organ  for  facilitating  the  expression 
of  public  opinion,  but  will  become  chiefly  interested  in 
offices  and  spoils.  To  the  end  that  it  may  become  more 
efficient  in  realizing  these  latter  purposes,  the  party  or- 
ganization tends  to  become  centralized  and  to  fall  under 
the  control  of  a  limited  number  of  able  leaders  who  sacri- 
fice a  great  deal  in  principle  to  attain  the  greatest  strength 
and  highest  perfection  in  organization.  The  obvious  rem- 
edy is  to  bring  the  party  organization  as  much  as  possible 
under  the  direct  control  of  the  party  voters."1  But  the 
"obvious  remedy'1  here  suggested  implies  the  practicabil- 
ity of  "direct  control  of  the  party  voters'1  which  we  have 
already  seen  presents  tremendous  difficulties*  If  direct 
control  means  a  scramble  among  a  group.of  favorite  sons 
resulting  in  the  rule  of  a  hopeless  minority  through  nomi- 
nations by  plurality;  if  it  means  a  contest  in  which  the 

*F.'  W.  Dickey,  "The  Presidential  Preference  Primary,"  in  Amer. 
Polit.  Sci.  Rev.t  Vol.  IX,  p.  475. 


112  POPULAR  GOVERNMENT 

prize  will  go  to  those  whose  financial  capacity  enables 
them  to  hire  the  largest  forces  of  publicity;  if  it  means 
that  accident,  caprice,  and  suggestion  are  to  play  impor- 
tant roles- in  the  selection — and  all  these  possibilities  must 
be  frankly  faced  in  connection  with  the  presidential  pri- 
mary— then  it  does  not  offer  a  very  attractive  solution 
to  the  problem. 

This  raises  the  question  whether  it  will  not  be  best 
to  fall  back  upon  the  doctrine  of  party  responsibility,  de- 
veloped in  the  preceding  chapter,  and  allow  public  opinion 
to  rule  indirectly  by  approving  or  rejecting  the  results  of 
the  party's  deliberations.  No  one  will  seriously  contend 
that  any  great  number,  any  considerable  percentage  of 
the  voters,  were  in  a  position  to  pass  an  intelligent  judg- 
ment upon  the  relative  qualifications  of  all  the  different 
candidates  for  the  Republican  nomination  in  1920.  On 
the  other  hand,  a  vastly  larger  number — after  the  politi- 
cal campaign,  after  they  had  seen  the  alignments  created 
by  the  nomination  and  the  platforms,  and  after  it  had 
become  obvious  from  what  groups  the  cabinet  would  be 
chosen — were  able  to  pass  an  intelligent  judgment  upon 
the  work  of  the  party  and  the  convention,  and  to  apply 
at  the  ballot  box  a  reasonably  efficient  system  of  rewards 
and  punishments.  After  all,  the  selection  of  the  best  can- 
didate is  a  question  of  fact  dependent  -upon  many  circum- 
stances, a  wide  acquaintance  of  all  of  those  competent  to 
serve,  and  a  clear  understanding  -of  the  particular  issues 
that  are  likely  to  be  paramount.  It  is,  therefore,  neces- 
sarily one  of  those  questions  upon  which  real  public  opin- 
ion cannot  function  directly,  but  where  it  must  function 
indirectly,  through  the  theory  of  party  responsibility, 
if  it  is  to  function  wisely  and  effectively. 

One  of  the  difficulties  is  the  popular  determination  to 
regard  political  bosses  as  a  group  of  men,  vested  with 


THE  PRESIDENTIAL  PRIMARY  113 

some  species  of  occult  power,  and  determined  to  throttle 
the  public  will.   Nothing  could  be  farther  from  the  truth. 
Among  keen  political  observers,  the  most  common  criti- 
cism of  politicians  as  a  class  is  their  fear  of  offending 
the  public  will.   The  reasons  are  obvious.   Their  power 
comes  from  their  ability  to  secure  approval  at  the  polls, 
for  without  that  they  are  helpless.    Mr.  Bryce  has  ob- 
served how  carefully  American  leaders  search  out  and 
follow  the  opinion  of  the  people.    "Those  who  manage 
the  affairs  of  the  country  obey  to  the  best  of  their  hear- 
ing.   They  do  not,  as  has  been  heretofore  the  case  in 
Europe,  act  on  their  own  view,  and  ask  the  people  to 
ratify;  they  take  the  course  which  they  believe  the  people 
at  the  moment  desire.  Leaders  do  not,  as  sometimes  still 
happens  in  England,  seek  to  force  or  anticipate  opinion; 
or  if  they  do,  they  suffer  for  the  blunder  by  provoking  a 
reaction.   The  people  must  not  be  hurried.   A  statesman 
is  not  expected  to  move  ahead  of  them;  he  must  rather 
seem  to  follow,  though  if  he  has  the  courage  to  tell  the 
people  that  they  are  wrong,  and  refuse  to  be  the  instru- 
ment of  their  errors,  he  will  be  all  the  more  respected. 
Those  who  fail  because  they  mistake  eddies  and  cross-cur- 
rents for  the  main  stream  of  opinion,  fail  more  often 
from  some  personal  bias,  or  from  vanity,  or  from  heark- 
ening to  a  clique  of  adherents,  than  from  want  of  mate- 
rials for  observation."1 

Another  objection  to  the  convention  is  that  its  delibera- 
tions are  not  controlled  by  the  mass  of  the  delegates,  but 
by  the  mere  handful  of  political  bosses  who  sit  behind 
the  scenes  and  wield  their  power.  But  there  is  nothing 
unusual  about  this.  There  are  no  deliberative  bodies  and 
no  instances  of  group  action,  where  the  leadership  is  not 
vested  in  a  few  of  the  ablest  members  of  the  group.  The 

^American  Commonwealth,  Vol.  II,  p.  280. 


114  POPULAR  GOVERNMENT 

political  bosses  at  a  national  convention  cannot  control 
the  delegates,  unless  the  delegates  whom  the  people  have 
chosen  wish  to  be  controlled*  If  the  bosses  dominate,  it 
is  because  they  have  the  confidence  of  the  delegates.  Their 
control  is  most  frequently  based  upon  their  superior  abil- 
ity to  see  the  great  lines  of  compromise  which  must  be 
followed,  if  the  varied  factions  of  the  convention  are  to 
agree  upon  a  common  plan  of  action.  The  service  that 
they  render  is  of  the  highest  value.  Their  power  is  con- 
ditioned upon  the  consent  of  the  delegates.  Whether  it 
will  be  exercised  for  the  good  of  the  public  will  depend 
upon  what  the  public  will  demand,  for  unless  they  ap- 
pease the  public  their  power  is  gone. 

To  take  a  great  national  convention,  with  all  its  dif- 
ferences of  viewpoint,  its  factional  disputes,  its  conflicting 
interests,  and  its  clashes  of  ideals,  and  to  arrange  a  pro- 
gram and  select  a  candidate  upon  which  the  convention 
can  agree,  is  a  task  demanding  the  highest  statesman- 
ship. Moreover,  it  is  of  paramount  importance  to  Ameri- 
can democracy.  It  is  not  necessary  that  one  must  approve 
in  detail  the  accomplishment,  but  It  is  vital  that  there 
should  be  such  an  honest  compromise  of  conflicting  inter- 
ests as  will  enable  them  to  take  group  action  that  will 
be  effective.  Honest  compromise  is  the  very  essence  of 
democracy,  and  the  moment  when  the  American  people 
cannot  meet  in  their  great  national  conventions  and  thrash 
out  a  national  program  upon  which  they  can  agree,  but 
split  up  into  irreconcilable,  hostile  groups — that  moment 
we  lose  much  of  our  practical  capacity  for  self-govern- 
ment. Under  such  circumstances  public  opinion  is  impos- 
sible, and  without  public  opinion  popular  government 
becomes  a  myth. 

The  present  primary  laws  have  made  this  tremen- 
dously important  task  more  difficult  of  accomplishment 


THE  PRESIDENTIAL  PRIMARY  115 

by  introducing  the  flocks  of  favorite  sons.  This  introduces 
new  artificial  lines  of  cleavage,  gives  unusual  power  into 
the  hands  of  local  politicians,  opens  the  way  for  a  new 
kind  of  political  logrolling,  and  adds  new  burdens  to 
those  whose  mission  it  is  to  develop  a  genuine  consensus 
of  opinion  among  the  group.  The  laws  of  some  of  the 
states  make  no  effective  provision  for  party  tests,  with 
the  unedifying  spectacle  of  members  of  one  party  seeking 
to  nominate  impossible  candidates  for  their  competitors. 
Because  of  the  tremendous  power  such  an  arrangement 
places  in  the  irresponsible  hands  of  an  independent  press, 
the  proprietor  of  a  string  of  newspapers  and  a  promi- 
nent member  of  the  Democratic  party,  was  alleged  to 
have  controlled  almost  eighty  votes  in  the  Republican 
convention  of  1920.  Moreover,  it  is  significant  that  the 
efforts  of  this  group  of  papers  as  well  as  of  some  of  the 
delegates  involved  seemed  determined  to  split  the  con- 
vention at  any  cost. 

An  excellent  example  of  the  manner  in  which  the  lead- 
ers of  the  party  may  work  out  results  in  a  convention, 
superior  to  those  obtainable  in  a  primary,  because  more 
representative  of  the  entire  nation,  is  cited  by  President 
Hadley.  "In  the  presidential  campaign  of  1860,  if  the 
Republican  convention  had  consulted  the  wishes  of  the 
majority  of  voters  within  the  party  it  would  have  nomi- 
nated Seward.  He  had  taken  strong  ground  against  slav- 
ery; and  northern  Republicans  who  were  excited  by  the 
heat  of  our  slavery  contest  saw  in  him  their  natural  cham- 
pion. But  sagacious  men  knew  that  Seward  could  not 
be  elected,  and  convinced  the  convention  of  the  soundness 
of  that  view.  It  nominated  Lincoln — a  man  who  spoke 
less  of  abstract  principles  than  Seward  and  more  of  con- 
stitutional law;  less  of  the  abolition  of  slavery — however 
much  he  may  have  had  this  at  heart — and  more  of  the 


116  POPULAR  GOVERNMENT 

preservation  of  the  Union.  The  nomination  of  Lincoln 
was  a  distinct  disappointment  to  extremists  throughout 
the  North;  but  it  appealed  to  moderate  men  in  states  ad- 
joining the  Potomac  and  the  Ohio,  whose  votes  were 
necessary  and  sufficient  to  elect  him. 

uThis  instance  is  a  typical  one.  The  convention  system 
has  been  distinctly  favorable  to  the  nomination  of  busi- 
nesslike candidates  for  the  principal  offices — of  candi- 
dates who  were  unsatisfactory  to  some  of  the  extreme  ele- 
ments in  their  own  party  and  satisfactory  to  the  moderate 
men  in  the  opposite  party.  It  hastened  to  give  us  men 
who  appealed  to  the  country  instead  of  appealing  to  a 
group.  With  the  substitution  of  the  direct  primary  we 
are  bound  to  lose  something  of  this  advantage.  We  are 
almost  certain  to  see  a  large  number  of  candidates  who 
represent  extreme  views  on  either  side.  To  prevent  this 
danger  from  becoming  fatal  the  press  of  the  country  will 
have  to  recognize  the  responsibility  that  is  placed  in  its 
hands  by  the  new  conditions,  and  strive  to  moderate 
rather  than  to  accelerate  the  tides  of  unreasoning  emo- 
tion."1 So  far  we  have  not  seen  a  great  deal  of  those 
modifying  influences  in  the  press  which  were  deemed 
essential  to  avoid  the  ill  effects  of  the  primary  system. 

There  are  many  evils  and  abuses  that  will  continue 
under  either  system.  In  the  last  analysis  it  will  be  the  ex- 
tent of  public  interest  and  intelligence  that  will  determine 
how  intolerable  these  abuses  may  become.  Gradual  im- 
provement of  the  primary  legislation  as  well  as  the  per- 
fection of  the  convention  system  will  contribute  some- 
thing to  the  betterment  of  conditions  under  either  system. 
Nothing  remarkable  will  be  accomplished  except  as  there 
is  developed  among  the  people  a  keener  sense  of  personal 
accountability  for  the  public  weal,  a  more  intelligent  un- 

*A.  T.  Hadley,  Undercurrents  in  American  Politics,  pp.  166-67. 


THE  PRESIDENTIAL  PRIMARY  117 

derstanding  of  the  tasks  to  be  performed,  and  a  deeper 
devotion  to  the  basic  ideals  of  American  democracy.  As 
these  forces  develop  with  the  passing  years,  it  does  seem 
that  some  form  of  the  convention  system,  with  its  oppor- 
tunities for  compromise  and  readjustment,  for  the  ulti- 
mate rule  of  the  majority  rather  than  of  the  plurality, 
and  for  the  utilisation  of  the  best  and  ablest  leadership 
within  the  party,  will  become  the  most  effective  instrument 
for  popular  government.  The  convention  places  a  pre- 
mium upon  leadership  rather  than  mediocrity,  upon  real 
national  opinion  rather  than  upon  local  but  competing 
sentiments,  and  upon  the  real  compromise  which  is  essen- 
tial to  majority  rule  instead  of  upon  some  irreconcilable 
program  of  a  triumphant  minority  under  a  system  of 
plurality  control.  Public  opinion  cannot  function  directly 
upon  the  intricate  and  delicate  task  connected  with  the 
presidential  nominations,  but  it  can  leave  the  technical  de- 
tails to  the  leaders  of  the  party,  and  function  indirectly 
by  holding  them  to  accountability  for  the  results  achieved. 


SUGGESTIVE   QUESTIONS   FOR 

CHAPTER  V 

I.  If  President  Wilson's  suggestion  for  the  nomina- 
tion of  a  President  by  nation-wide,  direct  primary  were 
adopted,  and  many  states  continued  their  policy  of  sup- 
porting favorite  sons,  what  would  be  the  effect  upon  ma- 
jority rule? 

II.  In  electing  delegates  to  the  national  convention, 
which  unit  of  election,  the  congressional  district  or  the 
state,  gives  to  public  opinion  its  best  opportunities  to 
function? 

III.  Is  there  any  logical  relation  between  the  candi- 
date nominated  and  the  platform  adopted?    If  so,  how 
could  this  relation  be  preserved  under  the  preferential 
primary  system  ? 

IV.  In  states  where  preferential  primaries  have  been 
adopted,   is  there   any  proper  objection  to   candidates 
spending  large  sums  of  money  so  long  as  it  is  expended 
legitimately  in  bringing  the  qualities  of  the  candidates  to 
the  attention  of  the  people? 

V.  If  there  is  no  objection,  does  this  mean  that  no 
candidate  can  be  successful  unless  he  is  very  rich  or  has 
wealthy  friends? 

VI.  Compare  the  result  of  the  preferential  votes  in 
the  Republican  primaries  in  1916  and  the  results  of  the 
nominating  convention.    Which,   in  your  opinion,  most 
truly  represented  public  opinion? 

VII.  If  nominations  are  left  to  a  convention,  which 
is  strongly  influenced  by  political  bosses,  what  reason  is 
there  to  believe  that  public  opinion  will  be  respected? 

118 


SUGGESTIVE  QUESTIONS  119 

VIII.  If  the  people  elect  delegates  to  a  national  con- 
vention who  can  be  arbitrarily  controlled  by  others,  what 
reason  is  there  to  believe  that  the  people  would  do  bet- 
ter in  the  selection  of  a  candidate  ? 

IX.  What  justification,  if  any,  is  there  for  allowing 
others  than  party  members  to  vote  in  the  party's  pri- 
mary? 

X.  What  would  be  the  effect  upon  the  popular  control 
of  government  if  the  delegates  to  a  national  convention 
could  not  effect  a  compromise  upon  which  a  majority 
could  agree,  but  broke  up  into  irreconcilable  groups? 


CHAPTER  VI 

THE  INITIATIVE  AND  REFERENDUM 

FOR  two  decades,  two  contradictory  tendencies  in  legisla- 
tion have  been  making  headway.  One,  the  tendency  to- 
ward scientific  legislation,  has  found  expression  in  the  cre- 
ation of  legislative  bill  drafting  departments,  the  estab- 
lishment of  special  commissions  for  the  scientific  study 
and  formulation  of  special  legislative  projects,  and  in  the 
rapidly  growing  recognition. that  is  being  given  to  the  fun- 
damental importance  of  the  science  of  legislation.  Along 
with  this  development  there  has  gone  a  growing  demand 
for  the  initiative  and  referendum  as  an  essential  remedy 
to  protect  the  public  against  the  evils  of  legislative  abuse. 
Both  are  the  product  of  the  same  forces — the  dawning 
realization  that  in  many  ways  American  democracy  has 
been  recreant  to  its  trust.  Engrossed  in  the  pursuit  of 
private  enterprise,  blinded  by  the  greatest  material  pros- 
perity that  any  people  have  enjoyed,  we  were  slow  to  see 
the  political  and  social  wreckage  that  followed  in  the 
wake  of  our  industrial  triumphs.  Child  labor,  city  tene- 
ments, industrial  disease,  unemployment,  organized  vice, 
and  political  graft  were  accepted  as  inevitable  by  a  com- 
placent public. 

As  we  crossed  the  threshold  of  a  new  century  we 
seemed  to  enter  a  period  of  moral  awakening.  Muck- 
raking came  into  its  own.  The  public  began  to  see  and 
comprehend  the  tragic  evils.  Demagogues  found  their 
greatest  power  in  capitalizing  public  interest  in  the  ac- 
counts of  political  rottenness  and  business  graft.  Aroused 
to  the  highest  pitch  of  indignation,  the  people  now  turned 

120 


INITIATIVE  AND  REFERENDUM  121 

to  the  government  they  had  neglected.  In  attributing 
the  blame  for  all  of  this  to  the  weakness  of  govern- 
mental forms  and  the  abuses  of  the  political  boss, 
they  unconsciously  sought  moral  "alibis"  for  their  own 
indifference  and  neglect.  Government,  politics,  business — 
all  were  subjected  to. zealous  scrutiny  and  vigorous  abuse. 
Out  of  this  moral  and  civic  awakening  there  developed 
many  political  tendencies  and  among  them  were  the  two 
tendencies  in  legislation  above  mentioned. 

When  the  public  discovered  the  extent  of  legislative 
incompetence  and  corruption  that  had  resulted  from  pop- 
ular indifference,  it  was  but  human  nature  for  them  to 
seek  a  veto  upon  legislative  power  and  the  creation  of 
an  alternative  device.  In  a  democratic  country  there 
seemed  to  many  but  one  place  for  them  to  turn,  and  that 
was  to  the  people.  The  demand  for  the  initiative  and 
referendum  was  the  inevitable  result.  The  obvious  fact 
that  it  was  the  indifference  of  these  same  people  that 
made  possible  the  conditions  they  sought  to  remedy  had 
little  influence  where  the  spirit  of  optimistic  democracy 
was  so  strongly  intrenched.  The  following  characteriza- 
tion of  the  evils  of  representative  government,  by  Mr. 
Langdon  C.  Stewardson,  is  typical  of  the  point  of  view 
that  found  expression  in  the  popular  clamor  for  direct 
legislation.  "The  evils  of  the  representative  system  are 
therefore  great  and  grievous.  Manifold  also  are  the 
temptations  to  which  the  representative  by  virtue  of  his 
position  is  exposed.  Unlawful  usurpation  of  power  in- 
dividually or  in  committee,  the  illegal  exertion  of  admin- 
istrative pressure  for  personal  or  party  ends  and  the 
demoralizing  opportunity  to  obtain  the  prize  of  illegiti- 
mate riches,  have  all  combined  to  impair  or  debauch  the 
character  of  many  representatives.  Great  political  prin- 
ciples are  forgotten  or  repudiated  in  the  busy  game  of 


122  POPULAR  GOVERNMENT 

trafficking  in  spoils  of  office,  whereas  in  the  mad  pursuit 
of  partisan  or  private  aims  the  people's  good  and  the 
people's  cause  are  for  the  most  part  abandoned."1  One 
of  the  most  discriminating  advocates  of  the  initiative  and 
referendum,  Professor  John  R.  Commons,  bases  his  argu- 
ment almost  entirely  upon  its  importance  as  a  means  of 
preventing  bribery,  and  he  suggests  the  caution  that  too 
much  must  not  be  expected  of  it.  "It  is  to  be  classed,  not 
with  legislation  proper  but  with  such  devices  as  the  secret 
ballot,  the  official  primary,  the  corrupt  practices  acts.  Its 
urgency  is  not  as  a  means  of  bringing  in  reforms,  but  as  a 
cure  for  bribery,  spoils,  and  corruption.  *  *  *  With  the 
referendum  the  use  of  money,  whether  honest  or  cor- 
rupt, will  be  almost  abolished.  The  main  objection  to 
the  referendum  is  that  it  defeats  sound  reforms  as  well 
as  'jobs,'  because  the  people  lack  confidence  in  their  law- 
makers. In  the  long  run  it  is  too  conservative.  It  will 
disappoint  the  radicals  who  now  advocate  it.  The  con- 
servatives who  now  oppose  it  will  be  its  hottest  cham- 
pions. The  initiative  will  give  but  little  help  in  this  direc- 
tion,'12 

The  initiative  as  it  has  been  generally  adopted  in  the 
United  States  is  a  device  by  which  a  specified  number  of 
people  (varying  from  five  to  eight  per  cent.)  may  frame 
a  statute  and,  by  petition,  submit  it  to  the  voters  of  the 
state  for  their  rejection  or  approval.  If  approved  it  be- 
comes a  law.  The  referendum,  on  the  other  hand,  is 
merely  a  device  by  which  the  people  may  exercise  a  popu- 
lar veto  upon  any  measure  passed  by  the  legislature.  The 
referendum  is  purely  negative,  while  the  initiative  is  con- 
structive. The  referendum  may  be  optional  with  the 

1  "Moral  Aspects  of  the  Referendum,"  in  Internat.  Jour,  of  Ethics, 
Vol  XIII,  pp.  133-151. 

a  "Direct  Legislation  in  Switzerland  and  America,"  in  Arena,  Vol. 
XXII,  pp.  725-39. 


INITIATIVE  AND  REFERENDUM  123 

people,  being  invoked  only  in  case  a  certain  per  cent,  of 
the  people  petition  for  it,  or  it  may  be  optional  with  the 
legislature,  the  reference  to  the  people  being  left  to  their 
discretion,  or  it  may  be  compulsory,  the  constitution  pro- 
viding that  every  law  or  every  law  of  certain  classes  shall 
not  become  effective  until  approved  by  the  people  in  a 
referendum  vote.  Constitutional  amendments  in  all  our 
states  are  now  subject  to  the  compulsory  referendum. 

It  will  thus  be  seen  that  the  initiative  and  referendum, 
in  so  far  as  they  tend  to  supplant  or  veto  legislative 
action,  to  that  extent  directly  raise  the  question  of  direct 
democracy  as  against  representative  government  in  legis- 
lation. This  in  turn  depends  upon  whether  public  opinion 
can  function  the  most  effectively  in  the  difficult  task  of 
meeting  modern  legislative  needs,  through  the  direct 
forms  provided  by  the  initiative  and  referendum,  or  in- 
directly through  our  representative  system  of  legisla^ 
tures.  This  involves  a  careful  analysis  of  the  needs  of 
modern  legislation  in  the  light  of  the  inherent  limitations 
in  the  nature  and  operation  of  public  opinion. 

A  survey  of  the  legislative  field  will  disclose  at  least 
three  definite  needs  of  modern  legislation.  The  value  ofj 
the  initiative  and  referendum  will  depend  upon  their 
efficiency  in  the  meeting  of  these  needs.  The  first  obvious 
need  is  the  accurate  and  honest  formulation  of  public  pol- 
icy. This  may  be  a  relatively  simple  question  such  as 
whether  or  not  the  liquor  traffic  shall  be  prohibited,  a 
certain  specific  debt  limit  exceeded,  or  a  bonus  granted 
to  the  returning  soldiers.  Such  legislative  policies  involve 
general  principles  or  common  facts  reasonably  well  known 
to  all.  It  may  safely  be  assumed,  therefore,  that  in  such 
cases  a  public  opinion  may  and  does  exist,  and  that  a 
referendum  vote  on  such  simple  matters  would  truly  re- 
flect the  opinion  of  those  participating  in  the  election* 


124  POPULAR  GOVERNMENT 

Moreover  It  seems  equally  clear  that  a  voluntary  group 
would  have  no  difficulty  in  initiating  such  a  policy  in  such 
a  way  as  to  secure  an  intelligent  response.  In  case  a  legis- 
lature, for  one  reason  or  another,  should  fail  to  follow 
public  opinion  or  decline  to  take  any  action,  the  initiative 
and  referendum  would  provide  the  public  with  a  direct 
method  of  relief. 

But  there  are  very  few  legislative  problems  that  are 
so  simple  that  a  public  opinion  regarding  them  may  be 
said  to  exist.  A  very  excellent  illustration  of  the  technical 
and  complicated  problems  involved  in  the  formulation 
of  an  ordinary  public  policy  is  given  by  Mr.  Thomas  I. 
Parkinson.  "In  workmen's  compensation  legislation,  for 
example,  the  legislator,  if  he  performs  his  legislative  duty 
seriously,  must  first  study  the  existing  employers'  liability 
law,  and  the  evils,  if  any,  produced  by  its  operation.  He 
must  analyze  these  evils  and  consider  the  possible  meth- 
ods of  remedying  them,  and  for  the  purpose  he  ought  to 
know  and  appreciate  the  methods  by  which  in  other  states 
or  countries  similar  evils  have  been  remedied.  Having 
decided  that  the  compensation  system  offers  the  best 
means  of  doing  justice,  there  remain  for  his  decision  im- 
portant questions  of  policy  involved  in  working  out  the 
details  of  such  a  scheme.  For  example,  shall  the  scheme 
apply  in  all  employments,  in  all  with  certain  exceptions, 
or  in  certain  specified  employments  selected  because  of 
their  extra  hazard  or  otherwise?  Are  all  injuries  in  the 
course  of  employment  to  be  compensated,  or  are  certain 
injuries,  such  as  those  caused  by  an  employe's  own  delib- 
erate act,  to  be  excepted?  Upon  what  basis  shall  the 
compensation  be  computed  and  how  shall  the  computation 
be  made  and  under  what  conditions  shall  it  be  paid  ?  What 
shall  be  the  procedure  to  determine  controverted  ques- 
tions? What,  if  any,  administrative  organization  is  re- 


INITIATIVE  AND  REFERENDUM  125 

quired  for  the  proper  enforcement  of  the  scheme?  Every 
one  of  these  problems  involves  the  determination  of  a 
multitude  of  detailed  questions  of  policy  before  the  pre- 
cise limits  of  the  rights  and  liabilities  created  by  the  act 
are  defined  in  such  manner  that  employer,  employe,  ad- 
ministrative officer  and  the  court  may  know  when  and  to 
what  extent  the  legislature  intended  that  A,  an  employer, 
should  compensate  B,  his  employe,  in  case  the  latter  is 
injured  in  the  course  of  his  employment."1 

No  one  would  seriously  contend  that  upon  such  a  pol- 
icy or  law  a  public  opinion  is  conceivable.  For  the  average 
layman  to  read  a  statute  embodying  such  a  policy  in  the 
technical  language  of  the  law  would  but  confuse  and  be- 
wilder him.  It  is  true  that  he  may  have  an  opinion  in  favor 
of  more  liberal  legislation  regarding  workmen's  compen- 
sation, but  as  to  whether  a  particular  statute  faithfully 
embodied  the  policy  he  desired,  so  that  it  would  give  the 
results  he  sought,  or  whether  it  was  full  of  jokers,  or 
whether  it  was  a  dishonest  evasion  of  the  policy  demanded 
by  the  public,  under  the  smoke  screen  of  legal  verbiage, 
he  could  not  possibly  determine.  He  might  be  willing  to 
accept  the  word  of  some  newspaper  or  politician  or  pub- 
lic man,  but  if  he  be  driven  to  that  extremity,  would  it 
not  be  better  to  have  him  leave  it  to  his  official  represen- 
tatives, whom  he  has  helped  to  elect,  and  who  are  morally 
and  politically  responsible  for  the  results  of  their  legis- 
lative acts.  If  they  have  been  negligent  or  played  the 
public  false,  the  people  may  have  just  retribution  by  re- 
tiring them,  and  the  party  they  represent,  to  private  life, 
In  dealing  with  such  technical  questions— and  most  mod- 
ern legislative  problems  come  within  this  class — public 
opinion  cannot  function  directly.  As  indicated  in  a  previ- 

1  "Legislative  Drafting,"  in  Proceedings  of  the  Academy  of  Political 
Science,  1913,  pp.  144-145. 


126  POPULAR  GOVERNMENT 

ous  chapter,  it  must  function  indirectly  through  the  choice 
of  representatives,  and  checking  them  up  by  holding  them 
and  their  party  to  strict  accountability  for  the  results  of 
the  policies  they  adopt.  The  people  are  not  able  to  judge 
of  a  workman's  compensation  act  by  a  mere  reading  of 
the  statute,  but  after  it  had  been  in  operation  for  a  period 
of  time,  and  its  results  become  known,  then  it  is  for  the 
first  time  that  public  opinion  may  become  articulate. 

To  submit  such  measures,  upon  which  a  public  opinion 
is  not  possible,  to  a  referendum  vote  is  to  submit  the 
fate  of  legislation,  which  may  be  of  tremendous  impor- 
tance to  the  best  interests  of  the  state,  to  the  determina- 
tion of  caprice  and  chance.  For  a  popular  vote  amounts 
to  nothing  more  where  a  public  opinion  is  not  involved. 
Wisconsin  has  a  law  providing  a  tubercular  test  for  cattle 
which  is  very  effective.  The  author  has  been  informed 
by  those  in  close  touch  with  the  administration  of  the 
law,  that  had  there  been  a  referendum  provision  in  Wis- 
consin, at  the  time  the  statute  was  adopted,  it  would  have 
been  submitted  to  the  people  and  would  have  been  de- 
feated. This  would  have  been  due  to  the  fact  that  the 
general  public  would  have  been  indifferent  to  it,  because 
they  did  not  understand  its  provisions  or  importance, 
while  the  farmers  would  have  fought  it  because  at  first  it 
seems  to  them  to  be  an  unwarranted  invasion  of  their 
private  rights.  But  after  several  years  of  successful  oper- 
ation, and  the  enjoyment  of  the  results  achieved,  it  would 
be  supported  by  all  alike. 

The  Wisconsin  income  tax  affords  a  like  example.  As 
previously  noted,  about  the  time  the  people  of  the  state 
were  engaged  in  the  perplexing  task  of  making  out  their 
first  returns,  a  referendum  vote  upon  the  provisions  of 
the  law  would  have  been  hailed  with  shouts  of  vindictive 
delight  and  the  law  would  have  been  destroyed.  To-day 


INITIATIVE  AND  REFERENDUM  127 

there  would  be  no  danger  of  its  defeat.  Very  little  legis- 
lation that  is  really  progressive  does  not  encounter  a 
temporary  opposition  born  of  the  friction  resulting  from 
the  necessary  change,  or  determined  opposition  from  a 
special  group  whose  selfish  interests  have  been  involved. 
To  submit  the  law  to  popular  determination  before  the 
public  have  had  ample  opportunity  to  judge  of  the  actual 
results,  is  to  give  undue  influence  to  special  interests  and 
popular  fancy  as  against  the  mature,  deliberate  judgment 
of  public  opinion. 

Nor  are  these  the  only  dangers  that  scientific  legisla- 
tion must  encounter  in  running  the  gauntlet  of  direct 
democracy.  Most  of  the  people  are  conservative.  The 
result  is  that  when  they  do  not  understand  a  law,  they 
either  decline  to  vote  at  all,  thus  leaving  it  to  those  who 
may  have  a  special  interest  in  the  result,  or  they  adopt 
the  slogan  of  "safety  first"  and  vote  "no."  The  result  is 
that  much  good  legislation  may  be  killed,  not  because  the 
people  do  not  approve,  not  because  they  are  opposed  to 
it,  but  because  they  do  not  understand.  As  our  political 
and  social  life  becomes  more  complex,  legislation  will  nec- 
essarily become  more  difficult  to  understand,  with  the  re- 
sult that  this  objection  to  the  referendum  will  become  one 
of  increasing  importance.  President  Lowell  has  made  a 
most  thorough  and  scholarly  investigation  of  the  opera- 
tion of  the  referendum  in  Switzerland,  coming  to  the 
conclusion  that  the  results  were  neither  radical  nor  social- 
istic, but  on  the  other  hand,  that  they  were  conservative.1 
The  same  writer  made  a  careful  analysis  of  the  twenty- 
three  general  state  laws  that  had  been  defeated  by  refer- 
endum votes  in  the  United  States  up  to  and  including 
1912,  and  reached  the  conclusion  that  in  the  cases  of  six- 
teen of  the  laws,  or  almost  three-fourths,  a  public  opinion 

*Public  Opinion  and  Popular  Government,  p.  168. 


128  POPULAR  GOVERNMENT 

was  impossible  by  the  very  nature  of  the  case.1  In  other 
words,  in  three-fourths  of  the  cases  where  the  people 
have  applied  a  popular  veto  to  the  deliberate  actions  of 
the  state  legislature,  the  action  has  been  dictated  by  igno- 
rance, accident,  or  caprice,  rather  than  by  public  opinion 
or  other  rational  procedure.  In  view  of  these  considera- 
tions there  seems  no  escape  from  the  conclusion  that  the 
popular  referendum  not  only  fails  to  make  any  real  con- 
tribution to  the  task  of  the  accurate  formulation  of  public 
policy,  in  those  cases  where  the  policy  involves  technical 
and  complex  matters,  but  that  it  tends  to  give  undue  pref- 
erence to  temporary  fancy  and  special  interest,  rather 
than  to  deliberate  judgment  and  real  opinion,  and  finally 
that  it  results  in  the  veto  of  legislation  by  ignorance  and 
the  absence  of  opinion  rather  than  by  the  intelligent  judg- 
ment of  the  electorate. 

To  this  latter  objection  it  has  been  answered  that  one 
of  the  good  effects  of  the  initiative  and  referendum  is  that 
they  will  be  expressed  in  language  so  clear  and  simple  that 
they  can  be  readily  understood  by  the  citizen  of  average 
intelligence.  This  sounds  pleasingly  plausible  but  will  not 
stand  investigation.  One  cannot  comprehend  a  work- 
men's compensation  statute  unless  one  is  familiar  with  the 
existing  status  of  the  law.  One  cannot  intelligently  judge 
of  the  wisdom  of  a  statute  against  industrial  disease  un- 
less one  knows  the  nature  of  the  various  diseases  involved, 
the  proper  preventive  measures  that  science  has  dis- 
covered, the  mechanical  and  manufacturing  aspects  of  the 
industries  that  are  involved.  It  is  not  too  much  to  say  that 
statutes  dealing  with  such  problems  can  never  be  brought 
to  the  alluring  simplicity  suggested.  The  whole  argu- 
ment proceeds  upon  the  wrong  hypothesis.  It  puts  the 
cart  before  the  horse.  It  seeks  to  cramp  and  compress 
V&wJ.,  pp.  174-184. 


INITIATIVE  AND  REFERENDUM  129 

the  problems  of  life  within  the  forms  provided  by  pre- 
conceived notions  of  democracy.  But  our  problem  is  not 
so  simple.  We  cannot  cut  down  our  problems  to  fit  a  prim- 
itive conception  of  democracy.  We  must  adjust  our  con- 
ceptions of  democracy  to  meet  effectively  the  actual,  vital 
problems  of  the  age.  If  these  problems  require  technical 
knowledge  and  specialized  skill,  then  we  must  discover 
some  method  by  which  public  opinion  can  apply  and  utilize 
these  qualities  in  the  performance  of  its  tasks.  Clearly 
this  cannot  be  done  by  the  devices  of  direct  democracy. 

At  the  time  America  was  considering  the  vital  question 
of  peace  or  war  with  Germany,  a  demand  was  made  that 
war  should  not  be  declared  without  a  referendum  vote. 
It  was  urged  that  it  was  an  awful  responsibility  for  the 
constitutional  officers  of  the  government  to  lead  the  peo- 
ple of  a  great  nation  into  the  most  terrible  war  of  history. 
No  one  will  deny  the  awful  nature  of  the  responsibility 
involved.  But  this  does  not  necessarily  constitute  an  argu- 
ment for  the  referendum.  It  merely  emphasizes  the  im- 
portance of  having  that  authority  located  where  it  will 
be  the  most  effectively  and  intelligently  exercised.  Now  let 
us  consider  the  wisdom  of  the  suggestion.  A  great  many 
people  felt  that  the  war  was  the  result  of  conditions  for 
which  America  was  the  least  responsible  of  any  of  the 
nations  of  the  world.  They  felt  that  if  we  could  avoid 
the  present  war  without  mortgaging  our  future,  such  a 
course  was  the  part  of  wisdom.  But  this  depended  upon 
two  vital  questions  of  fact.  If  we  did  not  intervene,  would 
Germany  win?  And  if  Germany  won,  would  a  German 
victory  prejudice  the  future  interests  of  the  United 
States?  Obviously  the  people  who  took  this  point  of  view 
could  not  have  an  opinion,  or  come  to  an  intelligent  de- 
termination upon  the  question  of  peace  or  war,  until  they 


130  POPULAR  GOVERNMENT 

had  first  come  to  a  conclusion  on  the  two  questions  of 
fact  suggested. 

As  to  the  possibilities  of  a  German  victory  if  we  did  not 
enter,  that  would  depend  upon  great  and  complex  ques- 
tions of  military  strategy,  the  size  of  the  competing 
armies,  the  relative  sources  of  food  supplies,  the  morale 
of  the  military  forces  and  peoples  of  the  belligerent 
states,  the  industrial  and  financial  resources  of  the  coun- 
tries involved,  and  finally  upon  the  diplomatic  sympathies 
and  tendencies  of  the  neutral  countries  of  the  world.  The 
government  at  Washington,  with  its  secret  service,  its 
diplomatic  channels,  its  confidential  information  from  the 
belligerent  countires,  its  expert  advice  upon  the  various 
technical  aspects  of  the  situation,  would  be  in  a  position 
to  pass  an  intelligent  judgment  from  month  to  month 
upon  the  probable  outcome  of  the  struggle,  whereas  the 
overwhelming  mass  of  the  people  would  never  be  in  pos- 
session of  sufficient  data  even  to  hazard  an  intelligent 
-.  guess.  The  eyidence  now  appears  to  be  very  clear,  that 
(  had  we  waited  until  the  people  could  have  come  to  an 
v  independent  judgment,  it  would  have  been  too  late,  and 
Germany  would  have  won. 

Nor  would  our  people  have  been  in  any  better  position 
to  have  judged  as  to  whether  or  not  a  German  victory 
would  mortgage  the  future  of  America.  That  would 
depend  upon  the  facts  and  conditions  underlying  Euro- 
pean diplomacy,  upon  the  bewildering  complexities  of 
world  politics,  and  upon  the  real  purpose  and  intent  of 
German  foreign  policy  and  the  German  people.  With  our 
proverbial  ignorance  of  foreign  affairs  and  European 
diplomacy,  the  American  people  were  not  able  to  come 
to  an  intelligent  opinion  upon  this  fundamental  problem 
with  sufficient  dispatch  and  promptness  to  protect  their 
future  interests.  A  referendum  on  the  issue  of  peace  or 


INITIATIVE  AND  REFERENDUM  131 

war,  under  these  conditions,  would  have  meant  but  little, 
except  to  have  caused  a  fatal  delay  in  the  protection  of 
American  interests.  The  American  people,  recognizing 
the  need  of  action,  were  ready  to  follow  the  decision  of 
their  constitutional  authorities,  and  to  support  them  with 
a  unanimity  of  action  and  a  determination  of  purpose 
that  has  reflected  undying  glory  upon  their  political  sa- 
gacity, their  patriotism,  and  their  common  sense. 

So  far  we  have  been  considering  the  referendum  from 
the  standpoint  of  helping  in  the  determination  of  accurate 
public  policy.  Many  will  admit  the  futility  of  the  refer- 
endum in  this  respect,  but  will  find  a  justification  for  it  in 
its  effectiveness  in  securing  honest,  if  not  accurate  results. 
They  argue  that  since  the  adoption  of  the  initiative  and 
referendum,  legislative  corruption  has  practically  dis- 
appeared, and  at  once  they  arrive  at  the  interesting  con- 
clusion that  it  was  all  due  to  the  beneficent  effects  of 
direct  legislation.  That  it  has  disappeared  very  largely 
is  admitted,  but  that  the  cause  has  been  the  adoption  of 
the  initiative  and  referendum  has  never  been  established. 
It  is  argued  with  great  enthusiasm  that  in  Oregon  dis- 
honesty is  rarely  if  ever  found.  But  the  same  is  equally 
true  of  Wisconsin,  and  with  equal  logic  it  can  be  claimed 
that  Wisconsin's  refusal  to  adopt  the  referendum  has 
been  the  cause  of  her  legislative  rectitude.  The  facts 
would  seem  to  be  that  the  general  improvement  in  legis- 
lative honesty  and  decency  has  been  due  to  the  moral 
awakening  of  the  last  two  decades  and  the  civic  ren- 
aissance that  accompanied  it.  Certainly  there  is  no  reason 
to  suppose  that  in  modern  technical  legislation,  upon 
which  public  opinion  is  impossible,  a  popular  vote 
would  be  any  more  effective  in  detecting  dishonest  motive 
than  in  discovering  inaccurate  policy.  The  moral  tone 
of  the  legislatures  has  improved  because  of  the  growing 


132  POPULAR  GOVERNMENT 

interest  of  the  people.  Increased  civic  interest  and  intelli- 
gence will  always  find  expression  in  more  honest  and  effi- 
cient government.  Our  problem  here  is  to  find  what  forms 
of  government  constitute  the  most  efficient  instruments 
for  the  expression  of  this  growing  interest. 

So  far  we  have  considered  only  the  referendum  with 
reference  to  the  formulation  of  public  policy.  The  initia- 
tive as  a  means  of  formulating  public  policy  now  remains 
to  be  considered.  This  is  extremely  important,  for  as  the 
initiative  and  referendum  operate  in  most  states,  any 
measure  that  is  backed  by  the  proper  petition  must  be 
submitted  to  referendum  vote,  and  if  adopted  will  become 
the  law,  regardless  of  how  poorly  and  inaccurately  the 
policy  has  been  formulated.  As  already  observed  in  the 
case  of  technical  legislation,  it  is  impossible  to  have  a 
public  opinion  function  upon  this  tremendously  impor- 
tant matter.  The  result  is  that  laws  that  have  been 
privately  drawn,  without  the  sifting  and  hammering 
process  through  which  bills  go  in  legislative  committee 
and  public  hearings,  and  for  the  formulation  of  which 
no  person  is  officially  responsible,  may  become  laws 
merely  because  they  purport  to  deal  with  things  which  the 
public  favors,  but  without  public  opinion  being  able  to 
judge  as  to  how  accurately  and  honestly  the  proposed 
policy  has  been  embodied  in  the  bill. 

Most  of  us  take  too  lightly  the  tasks  of  modern  leg- 
islation. The  popular  inclination  is  to  find  some  evil 
practice  and  to  pass  a  law  prohibiting  it.  In  the  complexi- 
ties of  modern  life,  when  there  are  so  many  interests  to 
be  defined,  delimited,  and  protected,  and  the  number 
of  legal  rules  increases  proportionately,  the  wise  and  in- 
telligent formulation  of  public  policy,  in  such  a  way  that 
it  wi|};  Jbe  the  most  beneficently  expressed,  and  provide 
the  minimum  of  friction  with  legitimate  interests,  is  a 


INITIATIVE  AND  REFERENDUM  133 

task  requiring  the  most  comprehensive  legal  and  social 
scholarship.  Dean  Pound  has  given  a  succinct  statement 
of  the  considerations  that  are  involved.  uWhat  the  law- 
maker has  to  consider,  therefore,  is  (1)  the  interests 
which  the  law  may  be  called  upon  to  recognize  and  secure, 
(2)  the  principles  upon  which  such  interests  should  be 
defined  and  limited  for  purposes  of  legal  recognition,  or, 
to  put  it  in  another  way,  the  principles  by  which  con- 
flicting interests  should  be  weighed  or  balanced  in  order 
to  determine  which  are  to  be  recognized  and  to  what 
extent,  (3)  the  means  by  which  the  law  may  secure  the 
interests  which  it  recognizes,  and  (4)  the  limitations 
upon  effective  legal  action  which  may  preclude  a  complete 
recognition  or  complete  securing  of  all  these  interests  to 
the  full  extent  which  ethical  considerations  may  de- 
mand."1 A  casual  consideration  of  the  foregoing  state- 
ment will  convince  one  that  the  wise  formulation  of  public 
policy  is  only  possible  among  those  of  great  training  and 
scholarly  attainments. 

The  greatest  students  of  American  legislation  are  in 
substantial  agreement  that  one  of  the  chief  needs  in 
our  legislative  development  is  a  sense  of  principle. 
Underlying  all  legislative  effort  there  should  be  great 
fundamental  principles  in  accordance  with  which  legal  de- 
velopment takes  place.  But  these  principles  can  be  discov- 
ered and  applied  only  by  those  who  are  special  students 
of  the  subject.  To  formulate  intelligently  a  policy  of 
taxation  according  to  incomes,  in  such  a  way  as  to  con- 
form to  sound  fundamental  principles,  involves  a  compre- 
hensive knowledge  of  the  whole  field  of  public  finance,  a 
clear  understanding  of  the  system  of  finance  already  in 
force  and  the  manner  in  which  the  new  system  will  affect 

1  "Legislation  as  a  Social  Science,"  in  Amer.  Jour,  of  Sociology, 
May,  1913,  p.  763. 


134  POPULAR  GOVERNMENT 

the  old,  an  adequate  mastery  of  the  problems  of  public 
administration  and  of  the  constitutional  limitations  that 
are  involved,  and  finally  a  comparative  knowledge  of  how 
these  same  matters  have  developed  in  other  states  and 
nations.  The  Wisconsin  income  tax  law  was  the  joint 
product  of  a  group  of  scholars  who  gave  two  years  to 
the  drafting  of  the  law,  with  the  result  that  it  has  proved 
to  be  a  very  valuable  piece  of  legislation,  because  in  the 
main  it  embodied  sound  fundamental  principles. 

Professor  Freund  has  given  a  very  excellent  statement 
of  what  he  means  by  principle  in  legislation  which  will 
help  us  to  understand  the  technical  nature  of  the  task 
imposed  upon  those  who  undertake  the  formulation  of 
statutes.  "Principle  as  applied  to  legislation,  in  the  juris- 
prudential  sense  of  the  term,  thus  does  not  form  a  sharp 
contrast  to  either  constitutional  requirement  or  policy, 
for  it  may  be  found  in  both;  but  it  rises  above  both  as 
being  an  ideal  attribute  demanded  by  the  claim  of  statute 
law  to  be  respected  as  a  rational  ordering  of  human  af- 
fairs; it  may  be  a  proposition  of  logic,  of  justice,  or  of 
compelling  expediency ;  in  any  event  it  is  something  that  in 
the  long  run  will  tend  to  enforce  itself  by  reason  of  its 
inherent  fitness,  or,  if  ignored,  will  produce  irritation, 
disturbance,  and  failure  of  policy.  It  cannot,  in  other 
words,  be  violated  with  impunity,  which  does  not  mean 
that  it  cannot  be  or  never  is  violated  in  fact."1 

It  would  seem  that  little  more  need  be  added  to  prove 
the  complicated  nature  and  the  fundamental  importance 
of  the  intelligent  framing  of  legislation.  In  the  face  of 
such  considerations  it  becomes  obvious  that  the  initiative 
is  not  only  likely  to  prove  futile,  as  a  means  of  accurately 
drafting  legislation,  but  that  it  may  at  times  prove 
actually  mischievous  by  submitting  to  the  hazards  of  pop- 

Treund,  Standards  .of  American  Legislation,  p.  218. 


INITIATIVE  AND  REFERENDUM  135 

alar  approval,  the  legislative  projects  of  irresponsible 
parties.  Nothing  is  more  disastrous  to  the  civic  interest 
^{  the  people  and  to  popular  confidence  in  government 
than  to  work  hard  for  the  passage  of  a  law  which  gives 
promise  of  relief  from  some  pressing  need,  only  to  have 
it  fail  because  poorly  drawn,  improperly  conceived,  in- 
adequate in  scope,  or  impossible  to  enforce.  It  may  be 
answered  that  private  parties,  reform  associations,  and 
others  may  employ  the  services  of  experts  and  thus 
secure  the  submission  of  ably  drafted  statutes.  Undoubt- 
edly this  is  true,  but  this  will  not  afford  any  reliable  assur- 
ance that  it  will  be  frequently  done  and  provides  abso- 
lutely no  guarantee  against  the  submission  of  poorly 
drawn  statutes  by  the  uninformed  whenever  they  may 
desire. 

On  the  other  hand  it  is  the  legislature  that  makes 
possible  the  utilization  of  technical  knowledge  and  expert 
advice.  Moreover  it  gives  opportunities  for  debate, 
criticism,  compromise,  and  adjustment  during  the  process 
of  construction  which  is  not  permitted  by  the  initiative 
as  generally  employed.  Mr.  S.  Gale  Lowrie  has  given  us 
an  excellent  statement  of  this  particular  advantage  that 
the  legislature  enjoys.  "From  the  introduction  of  a  bill  in 
our  American  legislatures  to  its  final  passage,  it  under- 
goes many  processes  calculated  to  reveal  its  weaknesses; 
if  these  are  fundamental,  the  measure  must  fail,  if  but 
incidental,  it  may  be  amended  in  such  a  manner  as  to 
make  it  a  workable  statute.  Considerable  progress  has 
been  made  in  recent  years  toward  the  betterment  of 
processes  for  statutory  construction.  The  growth  of  the 
legislative  library  movement,  the  installment  of  drafting 
departments,  the  revision  of  rules  relative  to  committee 
fhearings  so  as  to  further  guarantee  adequate  considera- 
tion of  measures  and  a  proper  report  upon  them,  already 


136  POPULAR  GOVERNMENT 

give  promise  of  a  new  era  in  representative  government. 
The  committee  hearing  is  invaluable.  Through  thb 
process  representation  of  the  various  interests  and  the 
many  social  groupings  in  the  state  is  approximately 
reached.  Those  more  directly  affected  by  proposed  laws 
may  thus  present  arguments  for  or  against  their  adoption 
and  valuable  information  relating  to  the  practicality  and 
usefulness  of  contemplated  legislation  is  thus  made  avail- 
able. To  this  is  added  the  debates  on  the  floor  of  the 
legislature  to  which  the  proposed  laws  are  further  sub- 
jected. This  process  is  not  open  to  laws  passed  under 
the  Oregon  initiative.  No  step  intervenes  between  the 
drafting  of  a  measure  and  its  final  consideration.  Once 
filed,  a  measure  is  subject  to  alteration  by  neither  its 
friends  nor  enemies  but  must  be  voted  upon  by  the  people 
who  settle  its  fate  upon  a  direct  'yes'  or  'no'  vote.  Little 
patience  would  be  had  with  the  suggestion  that  legisla- 
tive procedure  be  limited  to  a  vote  upon  measures,  that 
no  bills  be  referred  to  committees  or  debated  upon  the 
floor  of  the  house,  but  that  with  the  furnishing  of  mem- 
bers the  text  of  measures  and  a  review  of  such  arguments 
as  might  appear  in  the  public  press,  legislative  considera- 
tion should  end.  If  such  a  procedure  would  bring  results 
satisfactory  even  to  the  legislature,  hope  might  be  enter- 
tained for  the  permanency  of  the  Oregon  system."1 

To  meet  this  obvious  disadvantage  of  the  initiative, 
Mr.  Lowrie  suggests  the  adoption  of  the  plan  formulated 
by  the  legislature  of  Wisconsin.  "This  plan  establishes 
the  initiative  as  an  adjunct  of  the  legislature.  Just  as 
under  the  referendum,  any  law  passed  by  the  legislature 
may  be  brought  before  the  people  upon  petition,  so  under 
this  initiative  method,  any  measure  which  has  been  intro- 

1  "New  Forms  of  the  Initiative  and  Referendum,"  in  Am.  Pol.  Sci. 
Rev.,  Feb.,  1911,  pp.  568-569. 


INITIATIVE  AND  REFERENDUM  137 

duced  in  the  legislature  and  failed  of  passage  may  be 
enacted  by  a  vote  of  the  people.  Instead  of  circulating 
petitions  to  secure  the  consideration  of  measures,  it  is 
necessary  but  to  find  a  representative  who  will  introduce 
a  bill  in  the  legislature.  This  bill  will  be  referred  to  an 
appropriate  committee  and  opportunity  will  be  given  its 
friends  and  enemies  to  argue  its  merits  and  defects.  It 
will  be  subject  to  amendment  as  any  other  measure  and  to 
debate  and  criticism  in  accordance  with  legislative  rules. 
Should  it  be  passed  in  a  form  satisfactory  to  those  inter- 
ested, no  further  action  is  necessary,  but  in  the  event  of 
its  defeat  or  its  amendment  in  such  a  way  as  to  deprive 
it  of  its  usefulness,  a  petition  of  electors  will  place  the 
measure,  with  any  amendments  desired  by  the  petitioners, 
before  the  people."1  This  excellent  suggestion,  which, 
however,  never  became  law,  would  certainly  obviate  some 
of  the  vital  objections  to  the  initiative. 

The  second  great  need  of  modern  legislation  is  scien- 
tific bill  drafting.  Not  only  must  the  public  policies  be  ac- 
curately and  honestly  formulated,  but  they  must  be  trans- 
lated into  "apt  and  precise  language  which  will  fit  them 
into  existing  principles  of  constitutional  and  statute  law, 
and  make  them  reasonably  clear  to  the  executive  and 
judicial  officers  who  are  to  enforce  them."  In  actual 
practice  it  is  practically  impossible  to  separate  these  two 
vital  needs.  Innumerable  incidents  may  be  .cited  of  need- 
less and  expensive  litigation,  of  statutes  held  unconstitu- 
tional and  void,  of  laws  that  were  unenforcable  because 
uncertain,  and  of  important  legislative  projects  that  were 
wrecked  because  of  incompetent  and  negligent  legislative 
draughtsmanship.  A  technical  use  of  terms  and  phrases, 
guaranteeing  exactness  of  meaning  and  certainty  and  uni- 
formity of  usage,  is  as  indispensable  to  an  effective  sys- 
rf.,  pp.  570-571. 


lend 


138  POPULAR  GOVERNMENT 

tern  of  law  as  it  is  to  the  science  of  chemistry  or  mathe- 
matics. Yet  it  is  no  unusual  thing  to  find  statutes  drawn 
without  regard  to  the  technical  use  or  meaning  of  the 
words  employed,  with  the  result  that  they  frequently  in- 
volve endless  litigation,  or  are  impossible  of  intelligent 
enforcement. 

It  requires  no  detailed  discussion  to  demonstrate  the 
impossibility  of  a  public  opinion  upon  matters  so  highly 
technical  in  their  nature.  As  a  means  of  exercising  a  veto 
upon  legislation  because  of  imperfect  draughtsmanship, 
the  referendum  cannot  possibly  serve  any  useful  purpose, 
since  a  public  opinion  on  this  aspect  of  the  question  could 
not  possibly  exist.  Likewise  the  utilization  of  the  initia- 
tive for  this  purpose  would  seem  equally  futile.  Scien- 
tific bill  drafting  can  be  secured  only  where  there  can 
be  close,  intimate,  and  continuous  relations  between  those 
who  formulate  the  policy  and  those  who  translate  it  into 
legal  language.  In  our  state  legislatures  that  have 
equipped  themselves  with  legislative  reference  libraries 
and  scientific  bill  drafting  departments,  legislation  is  the 
joint  product  of  a  process  of  debate,  compromise,  criti- 
cism, and  adjustment  of  conflicting  points  of  view,  in 
which  the  constitutional  lawyer,  the  social  scientist,  the 
specialist,  the  bill  drafter,  and  the  legislator  have  contrib- 
uted their  important  parts.  To  substitute  for  this  scien- 
tific method  the  easy-going  simplicity  of  the  initiative 
is  a  step  backward  rather  than  forward  in  the  cause  of 
legislative  efficiency. 

The  third  great  need  of  modern  legislation  is  that  it 
should  conform  to  public  opinion.  Legislation  upon 
which  the  public  are  indifferent,  or  to  which  they  are  op- 
posed, will  be  quite  difficult  if  not  impossible  of  enforce- 
ment. For  reasons  that  are  obvious,  it  is  generally' much 
better  not  to  have  a  law  at  all  than  to  have  one  con- 


INITIATIVE  AND  REFERENDUM  139 

sistently  ignored.  It  is  especially  important  that  statutes 
should  conform  to  public  opinion  in  that  class  of  cases 
that  vitally  affect  the  private  interests  of  any  group  or 
class.  That  those  injuriously  affected  will  oppose  the  law 
with  all  their  might  is  obvious,  and  the  will  of  the  minor- 
ity will  prevail  in  defeating  the  enforcement  of  the  law, 
unless  they  encounter  on  the  other  hand  a  public  opinion 
that  will  resist  their  efforts.  Liquor  prohibition  legisla- 
tion is  an  excellent  case  in  point.  There  are  innumerable 
examples  of  such  legislation  being  adopted  before  public 
opinion  was  ready  to  demand  the  enforcement  of  the  law, 
with  the  disastrous  results  of  graft  and  lawlessness  that 
always  follow  in  such  cases.  That  there  should  be  a  real 
and  vital  relation  between  legislation  and  public  opinion 
will  scarcely  be  denied. 

But  the  difficulty  here  is  that  most  modern  legislation 
implies  technical  knowledge  and  experience.  Upon  such 
matters  public  opinion  cannot  function  directly  for 
reasons  that  we  have  discussed  above.  It  follows,  there- 
fore, that  in  such  cases  a  referendum  vote  could  not 
reflect  the  true  opinion  of  the  public.  The  only  other 
alternatives  would  seem  to  be  for  the  public  to  rely  upon 
the  members  of  the  legislature,  whom  they  have  elected 
and  whom  they  can  hold  responsible,  to  see  that  public 
opinion  shall  be  respected  in  the  legislative  program. 
The  public  can  judge  intelligently  and  directly  in  such 
cases  only  by  waiting  to  watch  the  actual  results  that 
are  achieved.  If  the  public  will  scrutinize  the  legisla- 
tive members  and  their  record  with  reasonable  diligence, 
and  consistently  hold  them  to  strict  accountability  for 
their  acts,  there  is  little  reason  to  believe  that  they  would 
have  great  occasion  to  complain.  The  cases  where  the 
legislatures  have  flaunted  public  opinion  have  generally 
been  cases  where  the  public  indifference  was  great,  and 


140  POPULAR  GOVERNMENT 

where  any  system  of  popular  government  was,  therefore, 
doomed  to  temporary  failure  in  advance. 

Moreover  it  may  be  argued  with  great  force  that  pub- 
lic opinion  operates  the  most  effectively  when  it  judges 
persons  instead  of  principles.  This  position  is  further 
strengthened  by  the  statistics  that  show  a  much  larger 
vote  for  members  of  the  legislature  than  for  pending 
measures. 

Where  the  laws  involve  only  simple  issues  such  as  pro- 
hibition, exceeding  debt  limits,  or  voting  bond  issues,  the 
initiative  and  referendum  may  perform  a  useful  service  in 
subjecting  them  to  the  test  of  public  opinion.  If  there  are 
two  or  three  issues  pending  at  a  given  time,  the  referen- 
dum gives  the  public  an  opportunity  to  approve  or  reject 
each  measure  as  it  may  desire,  whereas  in  voting  only 
for  representatives,  a  specific  choice  on  each  of  several 
issues  would  not  be  possible.  But  even  in  such  meas- 
ures, the  actual  operation  of  the  referendum  shows  it 
not  to  be  as  effective  as  it  might  seem  at  first  thought. 
One  of  the  reasons  for  this  is  the  small  vote  sometimes 
cast  and  the  close  decision  that  occasionally  follows.  For 
example  in  Oregon  in  1912,  38.75  per  cent,  of  the  people 
voted  in  favor  of  the  income  tax,  38.92  per  cent,  of  them 
voted  against  it,  and  22  per  cent,  did  not  vote  at  all.  In 
the  vote  on  a  civil  service  law  in  Colorado,  14.61  per 
cent,  voted  for,  13.42  per  cent,  voted  against,  and  72 
per  cent,  never  voted  on  the  measure.  Obviously  such 
decisions  can  have  no  great  significance.  Again  a  study 
of  popular  votes,  even  on  general  principles,  shows  an 
instability  in  result  that  is  ample  evidence  that  the 
decision  did  not  represent  real  opinion  but  rather  a  pass- 
ing fancy.  For  instance,  the  woman's  suffrage  amend- 
ment was  defeated  in  Oregon  with  increasing  majorities 
in  1906,  1908,  and  1910,  and  then  adopted  in  1912. 


INITIATIVE  AND  REFERENDUM  141 

This  impression  is  further  confirmed  when  one  notices 
the  number  of  matters  coming  before  the  people  of 
Oregon  for  their  decision.  There  were  thirty-two  meas- 
ures in  1910  and  thirty-seven  in  1912,  and  it  is  assuming 
a  great  deal  to  expect  a  public  opinion  on  so  many  meas- 
ures. To  help  educate  the  voters,  the  state  wisely  pro- 
vided for  the  printing  and  circulation  of  a  pamphlet, 
with  arguments  pro  and  con  on  the  measures  coming 
before  the  people.  In  1912  the  pamphlet  had  over  250 
pages  of  fine  print,  but  arguments  on  both  sides  of  the 
issue  were  found  in  the  case  of  only  thirteen  of  the 
thirty-seven  laws  proposed. 

Experience  in  Oregon  has  not  been  free  from  what  is 
known  as  sugar-coated  legislation;  that  is,  putting  into  a 
law  some  provisions  obviously  popular,  with  the  hope 
that  it  will  carry  through  a  statute  that  could  not  stand 
on  its  own  merits.  For  example  in  1910,  the  amend- 
ment to  the  constitution  repealing  the  provision  for  equal- 
ity of  taxation,  and  giving  to  local  bodies  the  authority 
to  regulate  the  taxes,  contained  a  provision  repealing  the 
poll  tax.  The  vote  in  favor  of  its  adoption  was  36.7 
per  cent,  of  the  people,  35  per  cent,  voting  against  it 
and  28.3  per  cent,  not  voting  at  all.  At  the  next  election 
the  repeal  of  the  amendment,  save  the  abolition  of  the 
poll  tax,  was  proposed  and  it  was  carried  by  a  majority 
of  over  16,000  votes. 

From  the  foregoing  it  would  seem  that  an  analysis  of 
the  initiative  and  referendum,  in  the  light  of  the  great 
legislative  needs  of  to-day,  shows  them  to  be  not  only  in- 
capable of  making  any  real  or  substantial  contribution  to 
the  meeting  of  these  great  needs,  but  that  they  may  very 
seriously  impair  the  character  of  modern  legislation.  In 
the  few  cases  where  laws  present  simple  issues,  they  may 
be  usefully  employed,  but  in  the  great  struggle  with  the 


142  POPULAR  GOVERNMENT 

complex  problems  of  the  present  day,  the  conditions  de- 
mand the  correlation  of  all  the  fields  of  specialized 
knowledge  in  any  constructive  and  scientific  attempt  to 
develop  a  system  of  law  that  is  adequate  and  just.  This 
can  only  be  accomplished  through  the  process  of  inves- 
tigation, specialization,  compromise,  and  adjustment,  for 
which  a  modern  representative  assembly  alone  is  fit. 
It  will  be  answered  that  in  the  direct  legislation  states, 
great  progress  has  been  made  in  recent  years  in  the 
development  of  progressive  laws.  But  it  may  be  an- 
swered that  even  greater  development,  and  certainly 
more  gigantic  strides  in  the  perfection  of  scientific 
legislation,  have  taken  place  in  some  states  where  the 
referendum  and  initiative  have  never  been  employed. 
Moreover,  it  may  be  urged  with  reason  that  the 
employment  of  direct  legislation  tends  to  make  the 
electorate  more  careless  in  the  selection  of  their  repre- 
sentatives, knowing  that  they  will  have  a  second  chance 
to  save  themselves  from  the  results  of  their  ignorance 
or  neglect.  It  is  human  nature  for  one  to  be  careless  in 
the  exercise  of  a  first  choice  when  he  knows  he  has  a 
second  choice  in  case  of  a  mistake.  It  thus  tends  to 
undermine  the  strength  of  the  legislature,  which  must  be 
the  hope  of  our  democracy,  if  we  are  to  develop  a  scien- 
tific system  of  law  that  will  keep  pace  with  the  vital 
demands  of  a  strenuous  and  complex  age.  As  one  con- 
templates the  profound  character  of  the  many  problems 
that  demand  legal  solution;  the  demand  for  some  adjust- 
ment of  the  rules  of  collective  bargaining;  the  demand  for 
adequate  protection  of  the  youth  of  the  land  in  health 
and  morals;  the  demand  for  an  efficient  and  democratic 
system  of  industrial  education;  the  demand  for  the  better 
protection  of  workers  from  the  ravages  of  industrial  dis- 
ease and  accidents;  the  demand  for  a  liberal  system  of 


INITIATIVE  AND  REFERENDUM  143 

taxation  that  is  just  and  equitable — one  is  compelled  to 
recognize  the  hopeless  futility  of  direct  legislation,  and 
the  imperative  need  of  profound,  scientific,  and  construc- 
tive methods  of  approach.  For  it  is  in  the  scientific  per- 
fection of  legislative  methods  and  the  representative  sys- 
tem that  we  must  seek  the  instrumentalities  of  progress. 

Nor  can  one  escape  the  sound  sense  expressed  in  the 
following  words  of  Mr.  Emmett  O'Neal:  "Members 
of  the  legislatures  of  the  different  states  are  the  agents 
and  direct  representatives  of  the  people,  and  if  it  be  true 
that  as  a  whole  they  are  incompetent,  unworthy  and 
corrupt  it  would  follow  necessarily  that  the  masses  of 
the  people  from  whom  they  spring  and  from  whom  they 
are  selected  were  also  either  corrupt  or  criminally  in- 
different to  their  interests  or  liberties.  They  possess  the 
same  characteristics  as  the  people  from  whom  they  have 
come,  and  if,  after  repeated  trials  and  selections,  the 
community  cannot  secure  an  intelligent  and  honest  man  to 
represent  it,  I  would  not  like  to  live  under  laws  initiated 
or  adopted  by  the  sovereignty  of  that  people."1 

*E.  M.  Phelps,  Selected  Articles  on  the  Initiative  and  Referendum, 
pp.  206-7. 


SUGGESTIVE  QUESTIONS  FOR 

CHAPTER  VI 

—  L  The  Paris  Peace  Conference  ruled  that  all  its 
sessions  should  be  secret,  and  only  the  things  agreed 
upon  announced  to  the  public.  Is  that  in  conflict  with 
sound  theories  of  popular  government?  Could  public 
opinion  apply  to  the  details  of  negotiation? 

II.  Are  there  any  kinds  of  problems  that  the  initia- 
tive and  referendum  could  not  solve  as  well  as  a  repre- 
sentative legislature?  What  are  they? 

•-^  III.  We  have  city  charters  providing  that  franchises 
shall  not  be  granted  except  upon  the  approval  of  the 
citizens  by  a  referendum  vote.  Does  the  question  of 
granting  a  franchise  afford  a  good  opportunity  for  the 
working  of  a  referendum? 

IV.  Would  a  referendum  on  a  no  license  law  be  an 
intelligent  use  of  the  referendum? 

- '  V.     Who  could  most  easily  utilize  the  initiative  and 

referendum,  the  special  interests  in  politics  or  the  general 
public?  It  has  been  urged  that  the  initiative  and  refer- 
endum are  the  instruments  by  which  the  general  public 
may  defeat  the  influence  of  special  interests.  Is  this 
sound  ? 

VI.  Modern  complicated  industrial  and  social  condi- 
tions require  scientific  legislation.     Will  the  adoption  of 
the  initiative  and  referendum  encourage  or  discourage 
scientific  improvement  in  legislation? 

VII.  Is  the  initiative  and  referendum  to  be  considered 
a  constructive  or  a  negative  instrument  for  improving 
our  government? 

144 


SUGGESTIVE  QUESTIONS  145 

VIII.  Would  the   initiative   and  referendum  be   an 
effective  instrument   for  the   enactment   of   an  effective 
income  tax  law? 

IX.  What  effect,  if  any,  do  the  initiative  and  ref- 
erendum have  upon  the  quality  and  character  of  men 
elected  to  the  legislature? 

—  X.     It  has  been  suggested  that  referendum  laws  be 
excepted  from  all  constitutional  restraints.    Discuss. 


CHAPTER  VII 

CONSTITUTIONAL   RESTRAINTS   AND   JUDICIAL   REVIEW 

THE  mere  fact  that  people  live  under  a  popular  gov- 
ernment does  not  guarantee  them  against  the  abuse  of 
power.  With  the  enjoyment  of  authority,  whether 
vested  in  a  ruling  house,  a  representative  legislature, 
or  a  popular  majority,  there  always  goes  the  tendency 
to  usurpation.  Individual  liberty  has  always  had  to 
struggle  against  the  encroachment  of  governmental  au- 
thority. Officialdom,  whether  dominated  by  the  tyran- 
nical purposes  of  a  despot,  or  the  hasty  and  intemperate 
action  of  the  electorate,  or  left  to  its  own  devices  by  an 
indifferent  democracy,  is  a  constant  potential  menace  to 
the  cause  of  freedom.  It  is  the  vivid  consciousness  of  this 
danger  that  has  led  radical  thinkers  to  the  extremes  of 
philosophical  anarchy  and  the  alluring  but  impracticable 
vagaries  of  pluralism.  They  reason  accurately  when  they 
declare  that  in  actual  practice  the  real  sovereignty  at 
any  one  moment  is  in  the  hands  of  those  vested  with 
official  power. 

One  of  the  chief  aims  of  democracy  was  to  secure 
a  government  that  would  respect  the  fundamental  rights 
of  liberty,  justice,  and  property  which  were  conceived  to 
be  essential  to  the  existence  of  a  successful  state.* But  the 
mere  process  of  popular  election  does  not  guarantee 
against  official  ignorance  or  oppression.  Popularly  elected 
officials  have  been  guilty  of  every  kind  of  misconduct 
which  may  be  charged  to  any  officers.  Moreover  these 
evils  were  foreseen  by  the  founders  of  our  democracy.  To 
prevent  them,  various  constitutional  restraints  upon  offi- 

146 


CONSTITUTIONAL  RESTRAINTS  147 

cial  action  were  prescribed.  'The  theory  of  the  separation 
of  powers  was  adopted  to  make  the  usurpation  of  author- 
ity more  difficult  of  accomplishment.  "One  of  the  funda- 
mental ideas  of  our  government/'  in  the  words  of  Mr. 
Elihu  Root,  "is  that  all  of  the  officers  to  whom  the  peo- 
ple, whether  of  the  nation  or  of  the  state,  intrust  the  pow- 
ers of  government  shall  be  subject  to  certain  definite  pre- 
scribed limitations  upon  their  power.  These  limitations 
are  of  two  kinds.  First,  those  which  relate  to  the  distribu- 
tion of  powers.  The  national  government  and  the  respec- 
tive state  governments  are  each  to  keep  within  its  own 
prescribed  field  of  action.  The  legislative,  executive,  and 
judicial  officers  are  to  be  confined  to  their  own  depart- 
ments of  government.  Within  those  departments  par- 
ticular officers,  wherever  it  is  found  expedient,  have  spe- 
cific lines  of  limitation  upon  their  power.  If  an  officer 
undertakes  to  do  something  which  is  not  within  the  pre- 
scribed limits  of  his  authority,  his  action  is  void  and  with- 
out legal  effect.  No  matter  how  able  and  patriotic  a 
president  or  a  governor  may  be,  no  matter  how  wise  a 
Congress  or  a  legislature  may  be,  no  matter  how  much 
they  may  deem  it  to  be  for  the  public  good  that  they 
should  invade  the  field  of  action  of  another  department, 
they  are  denied  the  right  to  do  it,  not  because  it  might 
not  be  a  very  good  thing  in  the  particular  case,  but 
because  the  prevention  of  unlimited  power  is  of  such  vast 
importance  to  liberty  that  no  particular  case  can  possibly 
be  important  enough  to  justify  abandoning  the  main- 
tenance and  the  observance  of  the  general  rule  of  pre- 
scribed limitations."1 

The  abuse  or  neglect  of  official  power  is  one  of  the 
reasons    frequently   urged   for   supplementing   our  ma- 

1  "Judicial  Decisions  and  the  Public  Feeling"  in  AT.  Y.  Bar  Assoti. 
Proceedings,  1912,  p.  148. 


148  POPULAR  GOVERNMENT 

chinery  of  representative  government  with  the  instru- 
ments of  direct  democracy.  The  more  extreme  advocates 
of  this  movement  urge  it,  among  other  things,  as  a  guar- 
antee against  official  invasion  of  individual  liberty  and 
private  right.  Their  argument  implies  that  the  rule  of 
the  numerical  majority  will  necessarily  conform  with  the 
true  standards  of  justice  and  liberty.  Consequently  with 
the  same  movement  there  has  gone  a  protest  against  the 
whole  theory  of  constitutional  safeguards.  People  seem 
to  have  forgotten  that  there  is  such  a  thing  as  the 
tyranny  of  the  majority.  They  seem  to  have  forgotten 
the  considerations  of  wisdom  and  experience  that  led  the 
framers  of  our  government  to  evolve  a  system  of  consti- 
tutional self-restraint. 

These  reasons  are  briefly  summarized  in  the  words 
of  Mr.  Root.  "Our  fathers  had  experienced  some  and 
observed  many  invasions  of  individual  liberty  and  indi- 
vidual right  of  which  governments  had  been  guilty. 
They  realized  that  the  nature  of  men  is  not  greatly 
changed  by  a  change  in  the  form  of  government,  and  that 
the  possession  of  overwhelming  power  affords  a  con- 
stant temptation  to  override  the  rights  of  the  weak. 
Accordingly,  both  in  the  nation  and  in  the  state,  they 
prescribed  certain  general  rules  which  prohibited  all 
officers  to  whom  they  intrusted  the  powers  of  govern- 
ment from  doing  certain  things,  such  as  inflicting  cruel 
and  unusual  punishments,  abridging  freedom  of  speech 
or  of  the  press,  prohibiting  the  free  exercise  of  religion, 
putting  any  person  twice  in  jeopardy  for  the  same  offense, 
compelling  any  one  to  be  a  witness  against  himself  in 
a  criminal  case,  taking  private  property  for  public  use 
without  just  compensation,  depriving  any  one  of  life, 
liberty,  or  property  without  due  process  of  law.  It  fre- 
quently happens  that  inconvenience  results  from  the  appli- 


CONSTITUTIONAL  RESTRAINTS  149 

cation  of  these  rules.  Criminals  escape  because  they 
cannot  be  tried  twice  or  cannot  be  compelled  to  testify; 
public  improvements  are  hindered  because,  property  can- 
not be  taken  except  by  due  process  of  l&*v;  the  liberty 
of  the  press  and  of  speech  often  degenerates  into  license, 
and  many  poor  people  are  misled  to  thei$  harm  by  the 
doctrine  of  strange  and  irrational  religious  sects.  Never- 
theless the  maintenance  of  these  rules  is  the  bulwark 
which  protects  the  weak  individual  citizen  in  the  pos- 
session of  those  rights  which  constitute  liberty;  and  it 
is  because  these  rules  with  all  their  inconveniences,  if 
maintained  at  all,  must  be  always  maintained,  that  the 
public  officer  who  oversteps  them,  with  however  good 
intentions  and  for  whatever  benefit  to  the  public,  becomes 
a  trespasser  without  authority  and  without  protection 
of  the  law."1 

According  to  Lord  Bryce,  "A  majority  is  tyrannical 
when  it  decides  without  hearing  the  minority,  when  it 
suppresses  fair  and  temperate  criticism  on  its  own  acts, 
when  it  insists  on  restraining  men  in  matters  where  re- 
straint is  not  required  by  the  common  interest,  when  it 
forces  men  to  contribute  money  to  objects  which  they 
disapprove,  and  which  the  common  interest  does  not 
demand,  when  it  subjects  to  social  penalties  persons  who 
disagree  from  it  in  matters  not  vital  to  the  common 
welfare.  The  element  of  tyranny  lies  in  the  wantonness 
of  the  act,  a  wantonness  springing  from  the  insolence 
which  sense  of  overwhelming  power  breeds,  or  in  the 
fact  that  it  is  a  misuse  for  one  purpose  of  authority 
granted  for  another.  It  consists  not  in  the  form  of  the 
act,  which  may  be  perfectly  legal,  but  in  the  spirit  and 
temper  it  reveals,  and  in  the  sense  of  injustice  and  op* 
pression  which  it  evokes  in  the  minority."2 

1  Ibid.,  pp.  185-6. 

1  American  Commonwealth,  Vol.  II,  p.  335. 


150  POPULAR  GOVERNMENT 

That  the  possibilities  of  majority  tyranny  are  nof 
merely  speculative  creations,  but  real  and  present  dan- 
gers, will  become  evident  upon  a  moment's  inquiry.  Dur- 
ing the  recent  war,  when  popular  indignation  and  pas- 
sion were  at  fever  heat,  there  was  a  continual  tendency, 
in  many  quarters,  to  deny  to  certain  persons  who  opposed 
American  participation  in  the  struggle  their  freedom  of 
speech.  Laws  were  introduced  in  legislative  bodies  and 
administrative  rulings  made  which,  had  they  been  en- 
forced, would  have  been  a  dangerous  denial  of  one  of 
the  most  fundamental  rights  that  the  citizens  of  a  free 
country  can  ever  hope  to  claim.  The  author  has  no 
sympathy  with  those  who  used  their  constitutional  pre- 
rogative to  weaken  indirectly  the  efficacy  of  the  Amer- 
ican forces  in  the  war.  He  cannot  comprehend  the  pride 
and  bigotry  of  opinion  that  would  sustain  one  in  his 
opposition  to  the  overwhelming  conviction  of  the  Amer- 
ican people,  backed  as  it  was  by  a  spirit  of  sacrifice  and 
consecration,  when  its  only  result  could  be  to  prolong 
the  struggle  and  increase  the  toll  of  human  life.  This 
protest  against  the  violation  of  free  speech  is  not 
motivated  by  sympathy  for  those  who  would  have  viti- 
ated the  results  of  American  sacrifice  exacted  in  the 
mighty  struggle.  It  is  the  product  of  a  profound  con- 
cern lest  freedom  of  speech,  one  of  the  landmarks  of 
the  struggle  for  liberty,  should  have  been  weakened  and 
forgotten  in  the  loss  of  perspective  occasioned  by  the 
stress  and  strain  of  war.  Had  the  conflict  continued  for 
another  year,  there  seems  little  doubt  that  official  power, 
backed  by  an  overwhelming  public  opinion,  would  have 
been  tempted  to  even  greater  inroads  upon  this  funda- 
mental right.  Nothing  but  the  presence  of  constitu- 
tional restraints,  interpreted  by  a  judiciary  far  removed 
from  the  pressure  of  popular  passion,  could  possibly 


CONSTITUTIONAL  RESTRAINTS  151 

have  afforded  adequate  defense.  By  liberty  of  speech 
here  is  meant  only  that  freedom  from  restraint  contem- 
plated by  the  Constitution  and  not  the  speaking  of  words 
with  the  intent  or  necessary  result  of  interfering  with 
the  lawful  processes  of  the  government. 

The  value  of  this  fundamental  right  to  the  cause  of 
civilization  is  amply  illustrated  by  German  experience. 
There  is  good  reason  to  believe  that  it  was  the  absence 
of  that  liberty,  more  than  all  other  causes,  that  enabled 
the  war  party  of  Germany  to  mobilize  behind  the  plans 
of  world  dominion  the  spiritual  and  intellectual  resources 
of  the  Empire.  When  the  German  leaders  of  modern 
internationalism — and  there  have  been  a  number  of  dis- 
tinguished men  who  had  a  wider  and  more  humane  vision 
than  the  government — began  to  get  a  following  or  to 
apply  their  theories  to  German  foreign  policy,  the  gov- 
ernment was  not  without  means  to  prevent  effective  prop- 
aganda. Added  to  this  was  the  stern  control  of  the 
school  system,  with  the  result  that  the  great  majority 
of  the  people  received  only  the  orthodox  German  con- 
ception of  the  state,  diplomacy,  and  world  politics.  Upon 
this  basis  it  was  easy  to  mould  the  opinion  of  the  German 
people  to  the  support  of  German  policy.  Without  free- 
dom and  spontaneity  of  thought,  discussion,  and  educa- 
tion (and  these  are  based  upon  liberty  of  speech  and 
press),  it  was  possible  for  the  population  of  a  great  na- 
tion to  be  thoroughly  organized  behind  an  inhuman  and 
shameless  project,  unworthy  of  the  noblest  and  proudest 
traditions  of  the  people.  It  is  difficult  to  doubt  that  if 
there  had  been  greater  freedom  of  speech  and  education 
in  Germany  for  the  preceding  thirty  years,  the  German 
program  of  1914  would  have  been  outside  the  realm  of 
possibility. 


152  POPULAR  GOVERNMENT 

It  should  be  noted  that  the  movement  against  free- 
dom of  speech  in  many  quarters  in  America  was  sup- 
ported by  the  unquestioned  majority  of  the  people,  not 
because  they  were  not  devoted  to  the  principle,  but  be- 
cause in  the  excitement  and  passion  of  the  hour  thev 
had  forgotten  it.    It  is  this  fact  that  makes  the  tyranny 
of  the  majority  so  treacherous  an  evil.     For  the  same 
reason  it  is  likely  to  find  its  most  despicable  expressions 
in  democracies  where  there  are  clearly  drawn  lines  of 
class,  social  or  racial  cleavage,  followed  by  the  orthodox 
prejudices    and    hatreds    usually    engendered,      "When 
society  is  composed  of  heterogeneous  classes/7  observed 
Professor  J.  R.  Tucker,  "commingled  in  the  same  local- 
ity, or  in  different  localities;  when  the  interests  to  be 
affected  by  law-making  are  not  alike,  but  are  rivals  and 
antagonistic — the  one  seeking  for  some  advantage  at  the 
expense  of  the  other — contention  will  arise  among  con- 
stituencies,   and  will   be   transferred   at   their   instance, 
through  their  respective  representatives,  to  the  halls  of 
legislation.     The   debate  between   conferees   as  to  the 
regulation  of  a  common  interest  would  become  a  fierce 
war  between  hostile  interests.     The  representative,  in 
good  faith  to  his  constituency,  would  strive  to  make 
laws  in  their  interest,  and  the  laws  would  be  moulded  by 
the  motives  of  the  constituencies  for  the  benefit  coveted, 
if  their  representatives   constituted   a  majority,   at  the 
expense  and  to  the  injury  of  those  constituencies  whose 
representatives  constituted  only  the  minority  in  the  body 
— powerless  to  defeat,  and  only  able  helplessly  to  protest. 
The  resistless  majority  would  crush  the  impotent  minor- 
ity.    The  interest  of  the  minority  would  have  no  true 
representation,  because  its  representatives  would  be  over- 
borne by  the  dominant  majority.     The  hand  of  the  ma- 
jority, which  would  wield  absolute  power,  is  not  the 


CONSTITUTIONAL  RESTRAINTS  153 

hand  of  the  minority,  which  holds  its  right,  but  the  hand 
of  an  alien  enemy  to  that  right.  Power  and  right  are 
thus  divorced,  not  wedded,  and  the  representative  ma- 
jority would  destroy  without  mercy  the  unrepresented 
minority.  In  such  a  state  of  society,  the  form  of  repre- 
sentation is  no  shield  for  the  rights  of  the  minority,  but 
a  sword  of  power  for  their  ruin."1 

American  experience  is  not  without  its  unfortunate 
examples  of  this  type  of  majority  tyranny,  the  product  of 
class  or  racial  antipathy.  Discriminatory  legislation 
against  the  negro  race,  in  one  form  or  another,  has  been 
so  common  as  scarcely  to  attract  attention,  except  an 
occasional  notice  in  the  daily  press  when  some  court  has 
held  such  statutes  void.  Legislative  discrimination  has 
generally  not  been  so  bad,  for  those  injured  generally 
contrive  to  get  their  pay  in  court  at  which  time  they  may 
plead  their  constitutional  rights.  The  most  significant 
thing  here  is  to  consider  what  the  condition  of  the  negro 
race  would  be,  were  it  not  for  the  constitutional  bul- 
warks that  preserve  it  from  the  tyranny  of  the  ma- 
jority. An  analysis  of  the  statutes,  directed  against 
negroes,  that  the  courts  have  overturned,  give  us  some 
idea  of  what  that  tyranny  would  be.  The  worst  aspects 
of  this  situation  are  found  in  the  unfair  administration  of 
the  law  against  the  negro,  where  the  courts  cannot  always 
afford  adequate  redress.  The  different  attitude  of  many 
prosecuting  attorneys  toward  offenders  of  the  two  races 
constitutes  nothing  short  of  tyranny.  But  since  the  at- 
torney is  generally  elected,  and  is  representing  the  wishes 
of  the  majority,  the  unfortunate  race  is  without  protec- 
tion. The  enactment  and  discriminating  enforcement 
of  laws  in  some  of  our  states,  directed  against  orientals, 
affords  additional  illustrations  of  majority  tyranny  in 

^Constitution  of  the  United  States,  Vol,  I,  pp.  91-92. 


154  POPULAR  GOVERNMENT 

its  grosser  forms.  The  author  does  not  mean  here  to 
imply  any  relation  between  the  prevention  of  majority 
tyranny  with  regard  to  certain  peoples  and  the  solution 
of  the  race  problem  in  America  (although  some  rela- 
tion must  undoubtedly  exist),  but  merely  desires  to  illus- 
trate that  in  America  we  do  have  problems  of  tyranny 
that  unrestrained  majority  rule  would  accentuate  rather 
than  remove. 

There  has  been  some  tendency  in  recent  times  to  ignore 
the  facts  of  majority  tyranny  and  to  attribute  the  consti- 
tutional restraints  adopted  by  the  Fathers  to  certain  mon- 
archistic  tendencies  and  an  antipathy  to  the  principles  of 
democracy.  But  a  careful  study  of  the  period  would 
seem  to  indicate  that  the  Fathers  were  animated  mainly 
by  a  sane  and  practical  fear  of  the  evils  of  majority 
tyranny,  with  which  they  had  considerable  experience. 
The  revolutionary  state  constitutions,  with  their  pro- 
visions for  legislative  omnipotence,  gave  ample  oppor- 
tunities for  the  demonstration  of  the  evils  of  unrestrained 
majorities.  In  the  introduction  to  his  edition  of  the  Fed- 
eralist, Mr.  P.  L.  Ford  gives  a  striking  summary  of  the 
evils  that  then  prevailed.  "Unchecked  by  the  balance 
usually  supplied  by  manufacturing  or  commercial  inter- 
ests, the  landholding  classes,  by  their  legislatures,  in  turn 
unchecked  by  coordinate  departments,  ran  riot.  Paper 
money  and  tender  laws  robbed  the  creditor,  regrating 
and  anti-monopoly  acts  ruined  the  trader.  When  the 
weak  state  courts,  true  to  the  principles  of  justice,  sought 
to  protect  the  minority,  the  legislatures  suspended  their 
sitting,  or  turned  the  ju'dges  out  of  office.  The  general 
government,  called  into  existence  by  the  articles  of  con- 
federation, which  had  been  modeled  on  the  Batavian  and 
Helvetic  constitutions,  was  but  a  legislative  dependent 
of  the  state  legislatures,  with  scarcely  a  shadow  of  ex- 


CONSTITUTIONAL  RESTRAINTS  155 

ecutive  or  judicial  power,  and  was  therefore  equally 
impotent  to  protect.  For  the  moment  a  faction  of  agri- 
culturists reigned  supreme,  and  to  the  honest  and  thought- 
ful, democracy  seemed  to  be  digging  its  own  grave, 
through  the  apparent  inability  of  the  majority  to  control 
itself. 

"Fortunately  injustice  to,  and  robbery  of,  fellow-citi- 
zens  eventually   injure   the  wrong-doer   as  well   as   the 
wronged.    A  time  came  when  the  claims  of  the  creditors 
had  been  liquidated  and  the  goods  of  the  traders  had 
been  confiscated,  and  the  former  refused  further  loans 
and  the  latter  laid  in  no  new  stocks.    The  capitalist  and 
the  merchant  were  alike  ruined  or  driven  from  business, 
and  it  was  the  landholder,  unable  to  sell,  to  buy,  or  to 
borrow,  who  was  the  eventual  sufferer.     Such  was  his 
plight  that  he  could  not  in  many  cases  sell  even  enough 
of  his  products  to  get  the  money  to  pay  his  annual  taxes, 
and  this  condition  very  quickly  brought  home  to  his  own 
instruments  of  wrong-doing,   the  legislatures,   the  evils 
they  had  tried  to  fasten  on  the  minority.    Taxes  were 
unpaid,  and,  except  where  the  conditions  were  factitious, 
the  state  treasuries  became  empty.   Finally,  in  an  attempt 
to  collect  the  taxes  in  Massachusetts,  a  formidable  revolt 
of   tax-payers    against   the   state    government  was  pre- 
cipitated.   Everywhere  the  state  legislatures  had  become 
objects  of  contempt  in  just  so  far  as  they  had  sinned 
against  classes  of  citizens,  and  the  people  were  threatened 
with  a  breakdown  of  all  government,  by  the  misuse  of 
majority  power.    It  has  been  the  fashion  of  historians  to 
blame  the  Congress  of  the  Confederation  with  the  ills 
of  1781-1789,  but  that  was  an  honest,  and,  when  pos- 
sible, a  hard-working  body,  and  the  real  culprit  was  not 
the  impotent  shadow  of  national  government,  possessing 
almost  no  powers  for  good  and  therefore  scarcely  any 


156  POPULAR  GOVERNMENT 

powers  for  evil,  but  the  all-powerful  state  legislatures, 
which  proved  again  and  again,  as  Jefferson  asserted, 
that  'one  hundred  and  seventy-three  despots  would  surely 
be  as  oppressive  as  one.'  m 

Such  were  the  conditions  that  brought  the  Fathers  to 
the  consideration  of  the  problem  of  constitutional 
restraints,  in  order  that  they  might  distinguish  between 
mere  majority  control  and  real  popular  government*  In 
doing  this  they  rendered  a  great  service  to  the  cause  of 
democracy  and  the  science  of  government. 

The  real  importance  of  preventing  majority  tyranny 
does  not  become  apparent,  however,  until  we  examine  it 
in  the  light  of  its  effect  upon  the  existence  of  a  true 
public  opinion  as  a  basis  of  popular  government.  We 
have  seen  that  we  cannot  have  true  public  opinion  unless 
the  minority  feel  themselves  bound  to  acquiesce  in  the 
opinion  of  the  majority.  This  attitude  will  never  exist 
in  regard  to  majority  action,  which  is  tyrannical  in  nature, 
and  which  runs  counter  to  the  deeply  embedded  prej- 
udices and  convictions  of  the  minority.  In  order  to  safe- 
guard the  very  existence  of  popular  government,  there- 
fore, it  has  been  necessary  to  erect  constitutional 
safeguards  to  protect  the  minority  from  such  action  by 
the  majority  as  would  lead  the  former  to  resistance  or 
revolt.  "It  is  safe  to  say,"  observes  President  Lowell, 
"that  if  any  nation  of  European  origin,  with  a  popular 
form  of  government,  were  now  to  forbid  a  part  of  the 
citizens  to  worship  according  to  their  consciences,  those 
men  would  regard  the  order  as  beyond  the  sphere  where 
they  were  under  a  moral  obligation  to  obey.  A  similar 
feeling  would  certainly  be  caused  by  the  proscription  of 
political  opponents,  by  laws,  for  example,  which  sent 
them  to  the  scaffold  or  into  exile.  It  might  be  provoked 

1  The  Federalist,  pp.  ix-xi. 


CONSTITUTIONAL  RESTRAINTS  157 

by  extreme  legislation  on  other  subjects,  such  as  the 
relations  of  parents  and  children  or  a  general  attack  on 
the  right  to  private  property."1 

Mr.  G.  Lowes  Dickinson  has  given  us  an  excellent 
statement  of  this  important  limitation  upon  the  possi- 
bilities of  popular  government.  uGovernment  by  the 
majority  is  a  convenient  means  of  conducting  national 
affairs,  where  and  in  so  far  as  there  is  a  basis  of  gen- 
eral agreement  deeper  and  more  persistent  than  the 
variations  of  surface  opinion;  but  as  soon  as  a  really 
fundamental  point  is  touched,  as  soon  as  a  primary  in- 
stinct, whether  of  self-preservation  or  of  justice,  begins 
to  be  seriously  and  continuously  outraged,  the  democratic 
convention  gives  way.  No  minority,  for  example,  even 
in  a  compact  modern  state,  either  would  or  ought  to 
submit  to  a  decision  of  the  majority  to  prohibit  the  exer- 
cise of  their  religion.  Such  a  decision  could  only  be 
carried  into  effect  by  force,  subject  to  the  contingency 
of  armed  rebellion;  and  orderly  government  would  dis- 
solve into  veiled  or  open  civil  war.  *  *  *  It  is  the 
presupposition  of  all  democratic  government  that  cer- 
tain principles,  tacitly  understood  if  not  precisely  for- 
mulated, will  in  practice  be  observed  by  any  party  that 
may  be  in  power.  *  *  *  And,  in  my  opinion,  the 
realization  of  the  political  ideal  of  the  extremer  Social- 
ists, and  the  attempt  by  that  particular  method  to  effect 
a  social  revolution,  without  any  fair  consideration  for 
the  claims  of  owners  of  property,  would  simply  result 
in  the  collapse  of  the  whole  convention  on  which  the 
possibility  of  government  depends."2 

"Even  in  the  most  firmly  established  democracies," 
again  quoting  from  President  Lowell,  "there  are  ques- 

1  Public  Opinion  and  Popular  Government,  p.  42. 
*The  Development   of  Parliament  During   the  Nineteenth  Century, 
pp.  161-62. 


158  POPULAR  GOVERNMENT 

tions  touching  a  chord  of  feeling  so  deep  that  the 
minority  would  not  voluntarily  submit  to  the  decision  of 
the  majority.  To  such  matters  a  genuine  public  opinion 
cannot  apply,  and  they  lie,  therefore,  beyond  the  province 
of  popular  government.  What  these  matters  are  cannot 
be  determined  by  any  universal  formula,  because  they 
vary  from  place  to  place  and  from  time  to  time;  but  it 
is  the  part  of  wise  statesmanship  to  recognize  them  and 
avoid  them  if  possible.  Although  in  any  nation  there 
may  come  periods  of  revolutionary  change  when  ques- 
tions of  this  kind  force  themselves  to  the  front,  yet  we 
must  remember  that  to  agitate  needlessly  subjects  lying 
beyond  the  range  of  a  true  public  opinion  tends  to  under- 
mine the  foundation  of  popular  institutions.  A  successful 
democracy  which  pursues  its  course  without  shocks,  which 
works  without  violence  and  without  oppression,  must 
be  one  where  the  limits  of  a  possible  public  opinion  are 
generally  understood  and  observed."1 

It  follows,  therefore,  that  a  people  that  would  gov- 
ern themselves  wisely  should  seek  to  limit  their  own 
powers  and  to  place  restraints  upon  their  own  action  in 
behalf  of  those  principles  which  a  careful  and  deliberate 
study  of  democratic  government  shows  to  be  essential  to 
its  success.  The  critics  of  this  system  seem  determined 
to  regard  these  constitutional  limitations  as  a  type  of 
tyranny  created  by  some  alien  power,  rather  than  as 
self-imposed  restraints.  They  frequently  insist  that  it 
raises  the  question  of  whether  the  people  or  the  court 
shall  rule.  Under  our  constitutional  system  there  is  no 
doubt  but  that  in  the  long  run  the  people  rule.  The 
question  we  must  here  consider  is  how  shall  they  rule,  if 
they  would  rule  the  most  wisely?  If  there  are  certain 
fundamental  principles  such  as  religious  liberty,  freedom 
1  Public  Opinion  and  Popular  Government,  p.  44. 


CONSTITUTIONAL  RESTRAINTS  159 

of  speech,  the  rights  of  property  and  the  inviolabil- 
ity of  contract  obligations,  the  preservation  of  which  are 
of  great  importance  to  popular  government,  and  which 
experience  shows  the  people  may  forget  in  the  time  of 
popular  passion  or  excitement,  is  it  not  the  part  of  wis- 
dom for  the  people  to  impose  upon  themselves  such  lim- 
itations as  will  check  hasty  and  ill-considered  action? 

Successful  men  deliberately  formulate  certain  funda- 
mental principles  for  their  lives,  which  careful  study  and 
thought  have  shown  to  be  essential  to  successful  living, 
and  they  accept  these  principles  as  self-imposed  restraints 
to  guide  their  action  against  the  time  when  the  passion 
or  strain  of  the  moment  may  pervert  their  judgment. 
Efficient  business  undertakings  have  "house  policies" 
which  are  carefully  studied  out,  and  in  which  are  em- 
bodied the  ablest  thought  of  the  enterprise,  and  these 
are  rigidly  adhered  to  in  the  solution  of  daily  problems, 
in  order  that  in  the  haste  and  stress  necessitated  by  the 
conditions  of  modern  business,  decisions  may  be  wisely 
and  safely  made.  Whist  players,  who  attain  great  pro- 
ficiency, have  studied  out  certain  general  rules  which  they 
accept  as  binding  on  their  judgments  in  the  playing  of 
the  game,  realizing  that  in  certain  fundamental  matters 
a  mature  and  carefully  considered  principle  of  conduct 
is  a  safer  guide  than  the  snap  decision  of  the  moment. 
The  whole  body  of  rules,  generally  known  as  practical 
laws,  are  formulated  upon  this  same  common-sense 
theory,  that  in  all  the  activities  of  life  there  are  gen- 
erally certain  fundamental  principles  of  right,  proper,  or 
efficient  conduct,  which  a  special  and  deliberate  study  of 
the  situation  will  disclose,  and  which  a  wise  and  prudent 
person  will  ascertain  and  accept  as  limiting  his  exercise 
of  daily  judgment,  until  later  study  or  investigation  will 
have  disclosed  a  still  better  principle  of  conduct. 


160  POPULAR  GOVERNMENT 

The  argument  for  the  adoption  of  constitutional  re- 
straints proceeds  upon  the  same  basis.  Its  advocates 
see  no  reason  why  the  same  principles  of  common  sense 
and  prudence  that  prevail  among  all  successful  men  and 
businesses  should  not  prevail  in  government.  There 
can  be  no  doubt  that  there  are  certain  fundamental  prin- 
ciples of  government,  such  as  religious  liberty,  the  rights 
of  property  and  freedom  of  speech,  which  are  so  obvi- 
ously essential  to  any  form  of  progressive  government, 
and  absolutely  indispensable  to  the  life  of  a  democracy, 
that  no  people  should  attempt  hastily  to  ignore  them.  If 
constitutional  restraints  are  limited  to  those  principles 
and  ideas  which  human  experience  has  demonstrated  to 
be  absolutely  essential  to  the  best  interests  of  the  race, 
then  constitutional  restraints,  in  their  behalf,  would  seem 
to  be  the  part  of  obvious  wisdom. 

One  of  the  things  that  has  tended  to  bring  this  system 
into  disrepute  has  been  the  failure  of  the  people  to  dis- 
tinguish between  those  fundamental  principles  which  his- 
tory and  experience  have  demonstrated  to  be  fundamental 
to  the  life  of  society,  and  ordinary  matters  of  legisla- 
tion, still  in  the  period  of  uncertainty,  and  still  to  be 
vindicated  by  the  lessons  of  experience.  Obviously  those 
matters  should  not  be  included  in  the  constitution,  but 
should  be  left  in  the  body  of  statutory  law,  where  they 
can  be  changed,  altered,  or  repealed,  as  experience  may 
indicate.  The  recent  tendency  to  write  long  state  consti- 
tutions, including  ordinary  matters  of  policy,  together 
with  the  common  use  of  the  initiative  and  referendum 
in  ordinary  legislation,  and  the  increasing  ease  with 
which  the  new  state  constitutions  may  be  amended,  have 
all  contributed  to  the  popular  confusion  between  funda- 
mental law  and  ordinary  legislation.  If  matters  of 
merely  temporary  expediency  are  to  be  included  in  the 


CONSTITUTIONAL  RESTRAINTS  161 

constitution,  then  it  should  be  easily  amended,  but  this 
ignores  the  distinction  that  ought  to  prevail  between  stat- 
utory law  and  constitutional  law,  and  this  difference  must 
be  kept  clear  if  the  doctrine  of  constitutional  restraints 
is  to  be  preserved  in  its  original  vigor  and  effectiveness. 

Constitutional  restraints  should  be  confined,  therefore, 
to  the  fundamental  principles,  demonstrated  by  history 
and  experience  to  be  essential  to  the  safety  of  society,  • 
such  as  personal  and  religious  liberty,  freedom  of  speech, 
due  process  of  law,  the  inviolability  of  contract  obliga- 
tions, and  ex  post  facto  guarantees. 

But  it  may  be  inquired  why  the  constitution,  drawn  up 
by  the  representatives  of  the  people,  in  convention  assem- 
bled, and  subsequently  ratified  by  popular  vote,  should 
have  priority  over  the  action  of  the  representatives  as- 
sembled in  the  legislature,  and  subsequently  approved  by  j 
referendum  vote,  uhere  are  three  reasons  to  justify  that 
priority.  The  first  is  the  one  already  considered,  viz., 
that  the  constitution  should  contain  only  fundamental 
principles  about  whose  wisdom  and  soundness  there  can 
be  no  reasonable  doubt.  On  the  other  hand,  by  the  very 
nature  of  the  case,  the  legislature  is  compelled  to  deal 
with  current  matters,  with  pressing  details,  and  with  new 
problems  which  require  various  kinds  of  legislative  re- 
lief, about  the  wisdom  of  which  it  is  impossible  to  speak 
with  any  degree  of  certainty  or  finality. 

The  second  reason  for  giving  priority  to  the  work  of 
the  constitutional  convention  is  that  since  it  is  dealing 
with  general  principles  only,  it  is  dealing  with  them  from 
a  more  judicial  viewpoint,  and  free  from  the  pressing 
necessities  of  immediate  need,  which  tend  to  warp  and 
bias  the  judgment  of  the  legislature,  as  that  body,  with 
its  eyes  upon  immediate  problems,  is  more  likely  to  over- 
look the  great  fundamental  principles  that  underlie  all 


162  POPULAR  GOVERNMENT 

government.  The  same  is  true  of  public  opinion.  In  oper- 
ating upon  the  general  provisions  of  a  constitution,  it  is 
more  likely  to  be  reasonable  and  judicious  in  its  judg- 
ment, than  if  operating  upon  some  particular  law  which 
may  embody  constitutional  principles,  since  in  the  latter 
case  it  is  inevitable  that  the  popular  feeling  will  be  more 
largely  influenced  by  the  immediate  and  concrete  demand 
for  the  legislation,  than  by  a  regard  for  the  abstract  prin- 
ciples of  constitutional  law.  This  may  be  very  easily 
illustrated  as  follows.  There  was  no  time  during  the  war 
when  the  people  would  have  failed  to  have  voted  over- 
whelmingly in  favor  of  the  constitutional  provision  for 
freedom  of  speech,  but  at  the  same  time  there  were  many 
times  and  places  where  these  same  persons  would  have 
voted  for  laws  interfering  with  those  same  constitutional 
rights,  if  such  laws  were  directed  against  German  sympa- 
thizers. The  passion  and  interest  aroused  by  the  con- 
crete object  in  mind  would  have  led  them  to  forget  or 
ignore  the  fundamental  principle  that  might  have  been 
involved. 

The  third  reason  for  this  priority  in  favor  of  the  con- 
vention, is  the  simple  fact  that  the  experience  of  Ameri- 
can politics  leads  unquestionably  to  the  conclusion  that 
the  type  of  men  in  our  constitutional  conventions  and  the 
work  done  by  them  are  infinitely  superior  to  the  type  of 
men  generally  found  in  the  state  legislature  and  to  the 
work  generally  there  performed.  A  constitutional  con- 
vention generally  interests  the  ablest  and  greatest  public 
men  of  the  state  and  they  participate  either  directly  as 
members  or  indirectly  as  advisers.  The  result  is  that  the 
work  there  done,  because  of  the  abler  type  of  men,  the 
greater  public  interest,  the  absence  of  much  of  the  petty 
partisan  intrigue,  and  the  more  fundamental  point  of 
view  from  which  they  approach  their  problems,  is  of  such 


CONSTITUTIONAL  RESTRAINTS  163 

a  character  as  to  merit  a  high  degree  of  public  confi- 
dence. It  would  seem  the  part  of  wisdom  not  to  permit 
ordinary  legislation  to  override  the  results  of  their  delib- 
erations, without  that  degree  of  effort  and  time  for  care- 
ful consideration  that  is  required  by  the  process  of  consti- 
tutional amendment.  For  it  must  be  remembered  that 
the  existence  of  constitutional  restraints  does  not  imply 
absolute  barriers,  but  merely  seeks  to  check  legislative 
action,  interfering  with  fundamental  rights,  for  the 
period  of  time  required  by  the  process  of  amendment. 

We  come  now  to  consider  the  methods  by  which  these 
constitutional  restraints  may  be  enforced.  Here,  after 
all,  is  the  real  battle  ground  of  constitutional  limitations. 
It  is  not  so  much  the  abstract  theory  of  constitutional  re- 
straints that  awakens  such  violent  opposition  from  radi- 
cals, as  it  is' the  policy  of  judicial  review  by  which  they  are 
enforced.  The  radicals  argue  that  the  legislature  is  in 
closer  touch  with  the  public  and  with  public  need,  and 
that  it  can  better  be  trusted  than  the  courts  with  the  en- 
forcements of  these  restraints.  This  argument  largely 
ignores  the  fact  that  one  of  the  very  prime  purposes  of 
constitutional  restraints  is  to  protect  these  fundamental 
rights  against  the  tyranny  of  the  people.  If  this  is  to  be 
effective,  the  enforcement  of  such  restraints  should  be 
vested  in  that  department  of  government  farthest  re- 
moved, rather  than  in  the  one  in  closest  touch  with  pop- 
ular clamor.  The  abolition  of  judicial  review,  by  which 
the  courts  hold  all  legislation  to  be  void  if  in  conflict  with 
constitutional  restraints,  would  be  to  leave  the  people 
with  no  protection  for  their  fundamental  rights,  except 
such  as  might  arise  out  of  the  moral  obligation  of  the 
legislature  not  to  violate  any  principles  included  in  the 
fundamental  law. 


164  POPULAR  GOVERNMENT 

Fortunately  we  are  not  without  some  evidence  as  to 
how  effective  these  moral  obligations  have  been  in  re- 
straining legislative  action.  Justice  L.  A.  Emery  has  col- 
lected some  material  on  this  aspect  of  the  question  which 
shows  that  constitutional  restrictions  upon  legislative 
action,  when  left  to  the  legislature  to  apply,  very  fre- 
quently amount  to  nothing.  "Perhaps,"  writes  Mr. 
Emery,  "the  judgment  of  those  urging  that  the  legisla- 
ture should  be  trusted  not  to  trespass  on  the  constitutional 
rights  of  the  people  may  be  enlightened  by  recalling  some 
instances  of  legislative  action  upon  constitutional  ques- 
tions left  to  its  decision  by  the  constitution  itself.  It  is 
hardly  necessary  to  cite  instances  of  the  abuse  of  this 
power  in  the  matter  of  determining  who  are  entitled  to 
seats  in  the  legislature.  It  is  common  knowledge  that, 
in  the  past  at  least,  both  law  and  fact  have  often  been 
over-ridden  for  partisan  advantage.  *  *  * 

«*  *  *  In  many  states  there  is  a  constitutional  provision 
that  no  legislative  act  shall  become  effective  until  after 
a  specified  time  has  elapsed  from  its  enactment  'except 
in  cases  of  emergency,'  which  emergency,  however,  is  to 
be  declared  in  the  act  itself.  This  provision,  of  course, 
is  to  give  the  people  time  to  understand  the  statute  and 
prepare  to  obey  it.  The  word  Emergency'  in  the  excep- 
tion implies  a  sudden,  unexpected  happening.  It  is  defined 
in  Webster  as  a  'pressing  necessity;  an  unforeseen  occur- 
rence or  combination  of  circumstances  which  calls  for  im- 
mediate action  or  remedy.'  In  Indiana  in  one  legislative 
session,  out  of  200  acts,  155  were  made  to  take  effect  at 
once  by  a  recital  that  an  emergency  existed  therefor.  In 
Illinois  a  two-thirds  vote  of  all  the  members  elected  to 
each  house  is  required  for  the  adoption  of  the  emergency 
clause.  Among  the  acts  of  the  last  session  containing  the 
emergency  clause  was  one  appropriating  $600  for  print- 


CONSTITUTIONAL  RESTRAINTS  165 

ing  the  report  of  a  monument  association.  In  Tennessee 
the  exception  was  of  cases  where  'the  public  welfare*  re- 
quired an  earlier  date.  Out  of  265  Jaws  passed  at  one 
session  230  contained  the  declaration  that  the  public  wel- 
fare required  their  going  into  effect  immediately.  In  Texas 
the  constitution  provides  that  no  bill  shall  be  passed  until 
it  has  been  read  on  three  several  days  in  each  house  and 
free  discussion  allowed  thereon,  but  that  cin  cases  of  im- 
perative public  necessity  four-fifths  of  the  house  may 
suspend  the  rule.'  Out  of  118  laws  passed  at  one  session 
all  but  five  contained  the  statement  that  'imperative  pub- 
lic necessity'  required  suspension  of  the  rule.1'1 

These  and  other  incidents  cited  by  the  same  writer 
indicate  very  clearly  that  constitutional  restraints  upon 
legislative  action,  when  left  to  the  legislature  to  enforce, 
are  more  frequently  violated  than  observed.  If  a  real 
doctrine  of  constitutional  restraints  is  to  be  preserved, 
therefore,  it  must  have  some  other  more  substantial 
guarantee  than  the  voluntary  observance  of  the  legisla- 
ture. 

To  those  who  argue  that  Great  Britain  has  no  doctrine 
of  judicial  review  and  therefore  that  none  is  necessary 
in  America,  Mr.  Emery  makes  the  following  very  telling 
reply.  "Though  Great  Britain,  our  mother  country,  has 
no  written  constitution  and  no  judiciary  empowered  to 
enforce  its  limitations,  it  is  the  happy  possessor  of  a  prac- 
tically homogeneous  people  of  the  Anglo-Saxon  race,  lit- 
tle affected  by  immigration,  and  imbued  for  centuries 
with  a  deep  regard  for  personal  liberty  and  private  rights. 
Yet,  even  there  today,  statutes  are  demanded  and  some- 
times enacted  in  derogation  of  them.  In  this  country  the 
population  as  the  result  of  great  immigration  is  more 
heterogeneous.  It  comprises  races  and  peoples  of  diverse 

aln  re  Lee  Sing,  43  Fed.  Rep.,  p.  359. 


166  POPULAR  GOVERNMENT 

temperaments,  of  diverse  experiences,  of  diverse  tradi- 
tions, many  unschooled  in  self-government  and  lacking  in 
that  traditional  reverence  for  liberty  and  order  so  charac- 
teristic of  the  Teutonic  races.  We  even  find  some  classes 
openly  declaring  that  if  they  can  get  possession  of  the 
government  they  will  exploit  the  rest  of  the  people  for 
their  own  benefit.  They  essay  also  to  bargain  their  votes 
for  special  legislation  in  their  favor  at  the  expense  of  the 
people  at  large  and  without  regard  to  the  principles  of 
equality  of  right. 

"With  such  a  population  with  its  universal  suffrage, 
i  were  it  not  for  our  written  constitutions  with  their  Bills 
of  Rights  and  with  an  independent  judiciary  to  guard 
them,  there  would  be  no  security  here  for  personal  lib- 
erty and  rights."1 

It  is  worthy  of  note  that  those  who  protest  against 
the  doctrine  of  judicial  review  regarding  constitutional 
restraints,  do  not  object  to  it  regarding  theh  constitutional 
division  of  powers  between  the  federal  and  state  govern- 
ments. Why  is  this  true  ?  Why  cannot  the  representatives 
of  the  people  in  Congress  be  trusted  to  pass  no  law  that 
will  encroach  upon  the  constitutional  prerogative  of  the 
states?  No  one,  except  the  most  extreme  advocate  of 
national  centralization,  who  was  ready  to  see  the  states 
reduced  to  mere  administrative  subdivisions  of  the  nation, 
would  tolerate  such  a  thought.  And  yet  there  is  no  rea- 
son to  believe  that  the  representatives  of  the  people 
would  be  more  considerate  of  the  constitutional  rights 
of  individuals  than  they  would  be  of  the  established  pre- 
rogative of  the  state. 

If  there  is  still  any  doubt  as  to  the  ineffectiveness  of 
constitutional  provisions,  when  left  to  the  mercy  of  legis- 
lative determination,  one  need  but  to  acquaint  oneself 
tf.,  pp.  162-163. 


CONSTITUTIONAL  RESTRAINTS  167 

with  some  of  the  five  or  six  hundred  laws  that  the  courts 
have  overturned  because  in  conflict  with  the  fundamental 
law.  This  will  become  more  significant  when  it  is  re- 
called that  these  legislatures,  like  the  courts,  have  taken 
the  oath  to  observe  and  uphold  the  constitution  of  the 
land.  One  or  two  examples  will  suffice.  About  1890  the 
city  and  county  of  San  Francisco  enacted  an  ordinance 
making  it  unlawful  for  any  Chinese  to  live  or  carry  on 
his  business  within  the  said  county  except  within  a  special 
section  set  aside  for  them,  and  giving  them  just  sixty 
days  within  which  they  must  either  leave  the  county  or 
move  to  the  section  specified,  under  a  heavy  penalty.  This 
outrageous  act  of  tyranny,  which  reads  more  like  a  Turk- 
ish mandate  regarding  the  Armenians,  than  a  city  ordi- 
nance enacted  in  a  democratic  country,  was  held  void  by 
the  federal  courts,  as  interfering  with  the  due  process 
guarantees  of  the  Constitution.  In  holding  the  law  void 
the  court  used  the  following  vigorous  language:  "The 
obvious  purpose  of  this  order,  is,  to  forcibly  drive  out  a 
whole  community  of  twenty-odd  thousand  people,  old 
and  young,  male  and  female,  citizens  of  the  United  States, 
born  on  the  soil,  and  foreigners  of  the  Chinese  race, 
moral  and  immoral,  good,  bad,  and  indifferent,  and  with- 
out respect  to  circumstances  or  conditions,  from  a  whole 
section  of  the  city  which  they  have  inhabited,  and  in  which 
they  have  carried  on  all  kinds  of  business  appropriate  to 
a  city,  mercantile,  manufacturing,  and  otherwise,  for 
more  than  forty  years.  Many  of  them  were  born  there, 
in  their  own  houses,  and  are  citizens  of  the  United  States, 
entitled  to  all  the  rights  and  privileges  under  the  Consti- 
tution and  laws  of  the  United  States,  that  are  lawfully 
enjoyed  by  any  other  citizen  of  the  United  States.  They 
all,  without  distinction  or  exception,  are  to  leave  their 
homes  and  property,  occupied  for  nearly  half  a  century, 


168  POPULAR  GOVERNMENT 

and  go,  either  out  of  the  city  and  county,  or  to  a  section 
with  prescribed  limits,  within  the  city  and  county,  now 
owned  by  them,  or  by  the  city.  This,  besides  being  dis- 
criminating against  the  Chinese,  and  unequal  in  its  oper- 
ation as  between  them  and  all  others,  is  simply  an 
arbitrary  confiscation  of  their  homes  and  property,  a 
depriving  them  of  it,  without  due  process  or  any  process 
of  law.  And  what  little  there  would  be  left  after  aban- 
doning their  homes  and  various  places  of  business  would 
again  be  confiscated  in  compulsorily  buying  lands  in  the 
only  place  assigned  to  them,  and  which  they  do  not  own, 
upon  such  exorbitant  terms  as  the  present  owners  with 
the  advantage  given  them  would  certainly  impose.  *  *  * 
"That  this  ordinance  is  a  direct  violation  of  not  only 
the  express  provisions  of  the  Constitution  of  the  United 
States,  in  several  particulars,  but  also  of  the  express  pro- 
vision of  our  several  treaties  with  China,  and  of  the  stat- 
utes of  the  United  States,  is  so  obvious,  that  I  shall  not 
waste  more  time,  or  words  in  discussing  the  matter.  To 
any  reasonably  intelligent  and  well-balanced  mind,  dis- 
cussion or  argument  would  be  wholly  unnecessary  and 
superfluous.  To  those  minds,  which  are  so  constituted, 
that  the  invalidity  of  this  ordinance  is  not  apparent  upon 
inspection,  and  comparison  with  the  provisions  of  the 
Constitution,  treaties  and  laws  cited,  discussion  or  argu- 
ment would  be  useless."1  Other  cases  of  similar  nature 
are  familiar  to  the  student  of  constitutional  law,  while 
the  repeated  efforts  of  states  and  municipalities  to  repudi- 
ate their  honestly  incurred  indebtedness,  and  which  have 
been  thwarted  only  by  the  action  of  the  courts,  afford 
undeniable  evidence  of  the  necessity  of  the  doctrine  of 
judicial  review,  not  only  to  protect  the  minority  against 
the  tyranny  of  the  majority,  but  to  protect  the  temporary 
1  In  re  Lee  Sing,  43  Fed.  Rep.  359. 


CONSTITUTIONAL  RESTRAINTS  169 

majority  from  the  dire  consequences  of  its  momentary 
cupidity  and  greed. 

Those  who  oppose  the  doctrine  of  judicial  review  argue 
in  favor  of  permitting  such  arbitrary  and  vicious  conduct. 
It  is  true  that  the  doctrine  has  occasionally  interfered 
with  legislation  that  has  seemed  desirable,  either  because 
of  the  error  of  the  court,  or  because  in  some  special  case 
the  constitutional  provision  seemed  to  work  a  hardship. 
Such  occasional  defects  inhere  in  any  system  of  human 
government.  But  in  a  government  such  as  ours,  repre- 
senting fundamental  differences  in  racial  and  economic 
interests,  and  with  such  a  large  percentage  of  foreigners 
among  us,  the  probabilities  of  majority  tyranny  are  so 
obvious,  that  a  repudiation  of  the  doctrine  of  constitu- 
tional restraints  and  judicial  review  would  seem  a  posi- 
tive menace,  not  only  to  the  fundamental  rights  of  the 
minority,  but  to  that  spirit  of  national  unity  which  can 
come  only  with  the  adequate  protection  of  such  rights. 
Nothing  will  so  surely  destroy  the  possibilities  of  real 
democracy  as  the  creation  of  irreconcilable  minorities 
through  oppression  by  the  majority. 

One  difficulty  here  should  be  noted.  Many  writers 
whose  position  is  such  as  to  entitle  them  to  great  respect, 
have  opposed  the  doctrine  of  judicial  review,  not  merely 
because  they  deemed  it  unwise,  but  because  they  regarded 
it  as  unwarranted  by  the  Constitution,  and  as  an  act  of 
judicial  usurpation.  Fortunately  such  well-known  men  as 
Professors  Beard,1  Corwin,2  and  others  have  carefully 
investigated  the  historic  evidence  and  have  come  to  the 
conclusions  that  the  framers  of  the  Constitution,  and  the 
leaders  of  public  opinion  who  labored  for  its  adoption, 
regarded  the  Constitution  as  vesting  the  courts  with  this 

*The  Supreme  Court  and  the   Constitution. 
'''The  Doctrine  of  Judicial  Review. 


170  POPULAR  GOVERNMENT 

important  power.  These  investigations  leave  no  other 
basis  to  support  the  charge  of  judicial  usurpation  than 
the  easy-going  assumptions  of  the  critics  and  the  exigen- 
cies of  political  abuse. 

It  is  only  from  an  understanding  of  the  importance 
of  judicial  review  in  resisting  majority  tyranny  that  one 
can  comprehend  the  real  importance  of  the  independence 
of  the  judiciary.  Its  importance  is  not  a  mere  matter  of 
abstract  political  logic,  as  many  have  apparently  thought, 
but  consists  in  the  very  nature  of  its  function.  If  people 
adopt  restraints  against  governmental  power  and  their 
own  hasty  and  intemperate  action,  obviously  the  enforce- 
ment of  those  restraints,  to  be  effective,  must  be  confided 
to  some  department  of  the  government,  free  from  the 
immediate  influence  of  the  public  and  the  domination  of 
the  government.  It  is  only  in  this  manner  that  consti- 
tutional provisions  may  be  made  supreme.  Professor 
Dicey,  in  commenting  upon  the  powers  and  organizations 
of  the  supreme  court,  has  declared  that  the  "glory  of  the 
founders  of  the  United  States  is  to  have  devised  or 
adopted  arrangements  under  which  the  constitution  be- 
came in  reality  as  well  as  in  name  the  supreme  law  of  the 
land."1 

uNo  honest,  clear-headed  man,'1  declared  President 
Taft,  "however  great  a  lover  of  popular  government, 
can  deny  that  the  unbridled  expression  of  the  majority 
of  a  community  converted  hastily  into  law  or  action 
would  sometimes  make  a  government  tyrannical  and 
cruel.  Constitutions  are  checks  upon  the  hasty  action  of 
the  majority.  They  are  the  self-imposed  restraints  of  a 
whole  people  upon  a  majority  of  them  to  secure  sober  ac- 
tion and  a  respect  for  the  rights  of  the  minority.  *  *  *  In 
order  to  maintain  the  rights  of  the  minority  and  the  indi- 

*Law  of  the  Constitution,  p.  154. 


CONSTITUTIONAL  RESTRAINTS  171 

vidual  and  to  preserve  our  constitutional  balance,  we  must 
have  judges  with  courage  to  decide  against  the  majority 
when  justice  and  law  require/'1 

It  has  appeared  from  the  foregoing  discussion  that  the 
possibilities  of  majority  tyranny  and  the  abuse  of  official 
power  are  fundamental  evils,  even  under  a  system  of 
popular  control.  The  existence  of  a  real  public  opinion 
will  be  very  difficult  to  secure  wherever  these  evils 
flourish.  To  guard  against  them,  constitutional  restraints, 
prohibiting  arbitrary  and  unjust  action,  have  been  writ- 
ten into  our  fundamental  law.  To  secure  their  enforce- 
ment an  independent  judiciary  has  been  created,  and 
vested  with  the  power  to  see  that  acts,  inconsistent  with 
such  restraints,  shall  be  null  and  void.  Mistakes  have 
been  made  in  the  enforcement  of  these  restraints.  Pro- 
visions have  been  written  into  the  fundamental  law  which 
should  never  have  been  adopted.  Incompetent  courts 
have  occasionally  abused  the  power.  But  when  an  exami- 
nation is  made  of  the  evils  that  have  been  prevented,  the 
good  seems  greatly  to  exceed  the  evil.  There  seems  no 
reason  why  a  democracy  should  not  adopt  the  commonly 
accepted  methods  of  human  experience — the  formulation 
of  fundamental  principles  of  conduct  for  the  safeguarding 
of  daily  action  against  the  temptations  of  the  moment — 
in  order  to  insure  its  members  against  the  hasty  or  intem- 
perate exercise  of  arbitrary  power. 

cial  Message  to  Congress,  Aug.  15,  1911. 


SUGGESTIVE  QUESTIONS  FOR 

CHAPTER  VII 

I.  Are  there  any  instances  of  majority  tyranny  in  the 
United  States  other  than  those  mentioned  in  this  chap- 
ter? What  are  they? 

II.  Are  there  any  subjects  in  relation  to  which  a  group 
of  irreconcilables  could  be  created  in  the  United  States 
by  improper  legislation?  What  are  they? 

III.  In  what  ways,  if  any,  could  majority  tyranny  be 
prevented  or  made  difficult? 

IV.  In  what  ways,  if  any,  could  legislation  on  sub- 
jects likely  to  create  irreconcilables  be  made  difficult? 

V.  "Constitutional  restraints  defeat  the  will  of  the 
people  and  have  no  place  in  popular  government."   Criti- 
cize the  foregoing. 

VI.  What  classes  of  matters  should  be  included  in  a 
written  constitution?   Generally  speaking,  should  a  writ- 
ten constitution  be  long  or  short? 

VII.  Are   there   any  spheres  of  private   right  with 
which  you  think  government  should  not  be  allowed  to 
deal?   What  are  they?   How  can  they  be  protected? 

VIII.  The  critics  of  the  doctrine  of  judicial  review 
generally  admit  its  necessity,  in  regard  to  determining  the 
constitutional  limitations  between  the  powers  of  the  fed- 
eral and  state  governments.    If  the  observance  of  these 
constitutional  rules  cannot  be  safely  entrusted  to  the  leg- 
islature, is  there  any  reason  to  believe  that  the  observance 
of  the  other  constitutional  guarantees  may  be  safely  left 
to  legislative  discretion? 

172 


SUGGESTIVE  QUESTIONS  173 

IX.  Has  the  existence  of  effective  constitutional  re- 
straints against  the  repudiation  of  public  debts  by  cities 
and  states  had  any  effect  upon  the  credit  and  borrowing 
power  of  American  states  and  municipalities?    Contrast 
the  credit  of  the  states  before  and  after  the  adoption  of 
the  federal  constitution  which  contained  these  restraints. 

X.  Is  it  ever  to  the  permanent  advantage  of  a  state  to 
repudiate  its  legally  created  debts? 


CHAPTER  VIII 

THE  RECALL  OF  JUDICIAL  DECISIONS 

THE  movement  for  direct  democracy  found  its  logical 
climax  in  the  recall  of  judicial  decisions.  It  was  but  natu- 
ral that  those  who  could  see  no  limitations  in  the  nature 
of  public  opinion,  and  who  could  comprehend  few  diffi- 
culties in  applying  it  to  any  of  the  complicated  problems 
of  modern  life,  should  have  undertaken  its  application 
to  the  review  of  judicial  action.  Impatient  of  the  re- 
straints imposed  by  the  orderly  and  constitutional  proc- 
esses of  the  law,  as  well  as  of  the  delays  necessitated  by 
the  inherent  difficulties  of  novel  and  complicated  prob- 
lems, eager  for  an  easy  and  simple  remedy  for  the  intri- 
cate ills  from  which  society  was  suffering,  and  with  an 
amazing  confidence  in  the  wisdom  of  the  majority,  the 
advocates  of  the  new  measure  argued  enthusiastically 
for  its  adoption.  Laws  had  been  declared  void  that  they 
thought  were  valid.  Badly  framed  legislation  had  failed 
to  give  the  results  that  had  been  expected.  Hastily 
drafted  laws  were  found  to  be  inadequate  in  meeting  the 
evils  at  which  they  were  directed.  These  conditions,  to- 
gether with  the  popular  dissatisfaction  over  the  delays 
and  expense  of  litigation,  gave  to  any  attack  upon  the 
courts  the  politically  strategic  position  that  comes  from 
immediate  popularity. 

The  specific  proposal,  as  stated  by  its  most  scholarly 
advocate,  Professor  William  Draper  Lewis,  is  as  fol- 
lows :  "If  an  act  of  the  legislature  is  declared  by  the  state 
courts  to  violate  a  provision  in  the  state  constitution, 
after  an  interval  for  deliberation,  the  people  of  the  state 

174 


RECALL  OF  JUDICIAL  DECISIONS  175 

shall  have  an  opportunity  to  vote  on  the  question  whether 
they  desire  to  have  the  act  become  a  law  in  spite  of  the 
opinion  of  the  court  that  it  is  contrary  to  the  constitu- 
tion. ni  This,  together  with  the  following  statement  by 
Colonel  Roosevelt,  affords  a  reasonably  definite  state- 
ment of  the  proposition  as  a  basis  of  our  discussion :  "(I) 
I  am  not  proposing  anything  in  connection  with  the  Su- 
preme Court  of  the  United  States,  or  with  the  Federal 
Constitution. 

"(2)  I  am  not  proposing  anything  having  any  connec- 
tion with  ordinary  suits,  civil  or  criminal,  as  between  in- 
dividuals. 

"(3)    I  am  not  speaking  of  the  recall  of  judges. 

"(4)  I  am  proposing  merely  that  in  a  certain  class  of 
cases  involving  the  police  power,  when  a  state  court  has 
set  aside  as  unconstitutional  a  law  passed  by  the  legisla- 
ture for  the  general  welfare,  the  question  of  the  validity 
of  the  law — which  should  depend,  as  Justice  Holmes  so 
well  phrases  it,  upon  the  prevailing  morality  or  prepon- 
derant opinion — be  submitted  for  final  determination  to 
a  vote  of  the  people,  taken  after  due  time  for  consider- 
ation.'12 

Later  on  it  appears  that  the  recall  should  only  be  ap- 
plied to  those  state  cases  involving  the  police  power, 
where  the  court  has  held  the  statute  void  because  in  con- 
flict with  the  due  process  clause  of  the  Constitution.  It 
should  also  be  added  that  the  purpose  of  the  recall  is  the 
specific  amendment  of  the  Constitution,  rather  than  a 
reversal  of  the  decision  of  the  court.  In  other  words,  if 
a  law  is  held  void  because  in  conflict  with  the  due  process 
provisions  of  the  Constitution,  and  the  majority  of  the 
people  vote  in  favor  of  the  recall,  the  vote  does  not  re- 

1<4New  Method  of  Constitutional  Amendment  by  Popular  Vote"  in 
Annals  of  the  American  Academy,  Vol.  XLIII,  p.  311. 

a  "Right  of  the  People  to  Rule"  in  Outlook,  Vol.  100,  p.  618. 


176  POPULAR  GOVERNMENT 

verse  the  decision  of  the  court,  but  instead  amends  the 
Constitution  so  that  in  the  future  the  due  process  clause 
will  not  prohibit  the  specific  statute  involved  in  the  deci- 
sion. 

This  squarely  raises  the  question  as  to  the  wisdom  of 
having  a  popular  vote  (not  taken  on  the  abstract,  im- 
personal, general  principles  of  the  Constitution,  but  taken 
with  reference  to  a  specific,  concrete,  and  perhaps  press- 
ing need),  determine  the  application  of  one  of  the  funda- 
mental principles  of  the  Constitution  to  a  situation  invok- 
ing its  protection.  We  have  seen  that  the  purpose  of 
constitutional  restraints  is  to  protect  the  individual 
against  the  abuse  of  official  power,  to  defend  the  rights 
of  the  minority  against  the  tyranny  of  the  majority,  and 
to  safeguard  the  people  against  their  own  hasty  judg- 
ments that  might  be  perverted  by  passing  passion.  Does 
the  recall  of  judicial  decisions  impair  these  fundamental 
safeguards?  Will  such  a  vote,  under  such  conditions, 
register  a  calm,  temperate  judgment  of  the  people  as 
to  the  relative  merits  of  the  two  principles  that  clash? 
Is  this  the  most  effective  way  in  which  the  voice  of  the 
public  can  speak  upon  a  subject  of  such  paramount  impor- 
tance? Will  such  a  vote  be  likely  to  register  a  real  public 
opinion  upon  the  fundamental  merits  of  the  case  ?  These 
are  the  questions  that  must  be  considered. 

The  case  for  the  adoption  of  the  recall  of  judicial  de- 
cisions rests  upon  two  fundamental  propositions,  which 
we  will  now  consider.  The  first  is  that  the  scientific  and 
proper  test  of  what  constitutes  "due  process  of  law"  is 
the  "preponderant  opinion  of  the  people."  This  amaz- 
ing proposition  was  stated  by  Colonel  Roosevelt  as  fol- 
lows: "I  have  insisted  that  the  true  construction  of  'due 
process'  is  that  pronounced  by  Justice  Holmes  in  deliv- 
ering the  unanimous  opinion  of  the  Supreme  Court  of  the 
United  States,  when  he  said: 


RECALL  OF  JUDICIAL  DECISIONS  177 

"  'The  police  power  extends  to  all  the  great  public 
needs.  It  may  be  put  forth  in  aid  of  what  is  sanctioned 
by  usage,  or  held  by  the  prevailing  morality  or  strong  and 
preponderant  opinion  to  be  greatly  and  immediately  nec- 
essary to  the  public  welfare.' 

"I  insist  that  the  decision  of  the  New  York  Court  of 
Appeals  in  the  Ives  case,  which  set  aside  the  will  of  the 
majority  of  the  people  as  to  the  compensation  of  injured 
workmen  in  dangerous  trades,  was  intolerable  and  based 
on  a  wrong  political  philosophy.  I  urge  that  in  such  cases 
where  the  courts  construe  the  due  process  clause  as  if 
property  rights,  to  the  exclusion  of  human  rights,  had  a 
first  mortgage  on  the  Constitution,  the  people  may,  after 
sober  deliberation,  vote,  and  finally  determine  whether 
the  law  which  the  court  set  aside  shall  be  valid  or  not. 
By  this  method  can  be  clearly  and  finally  ascertained  the 
preponderant  opinion  of  the  people  which  Justice  Holmes 
makes  the  test  of  due  process  in  the  case  of  laws  enacted 
in  the  exercise  of  the  police  power.  The  ordinary  meth- 
ods now  in  vogue  of  amending  the  Constitution  have  in 
actual  practice  proved  wholly  inadequate  to  secure  justice 
in  such  cases  with  reasonable  speed,  and  cause  intolerable 
delay  and  injustice,  and  those  who  stand  against  the 
changes  I  propose  are  champions  of  wrong  and  injustice, 
and  of  tyranny  by  the  wealthy  and  the  strong  over  the 
weak  and  helpless. "* 

It  must  be  admitted  that  in  resting  their  case  on  this 
proposition,  the  advocates  of  the  recall  of  decisions  chose 
their  ground  with  considerable  shrewdness,  when  they 
limited  its  application  to  cases  involving  udue  process  of 
law"  and  the  upolice  power."  The  indefiniteness  which 
surrounds  the  use  of  these  two  general  phrases  gives 
a  plausible  pretext  for  their  thesis,  which  would  have 


178  POPULAR  GOVERNMENT 

been  lacking  had  they  encountered  some  of  the  more 
definite  constitutional  guarantees.  As  it  is  they  have  no 
authority  for  the  proposition,  other  than  the  unfortunate 
dicta  of  Mr.  Justice  Holmes.  It  is  perhaps  significant 
that  they  have  attempted  no  legal,  logical,  or  historical 
defense  of  their  startling  doctrine,  although  it  constitutes 
the  very  foundation  of  their  case.  In  dealing  with  a  blan- 
ket provision  like  "due  process,"  where  its  necessary  in- 
definiteness  allows  considerable  play  for  other  factors 
than  strict  legal  logic  and  precedent  to  determine  its  mean- 
ing and  application,  there  is  always  room  for  speculation  as 
to  what  those  other  factors  are.  Doubtless  "the  prevail- 
ing morality  or  strong  and  preponderant  opinion"  of  the 
people  has  its  influence  among  the  other  unascertainable 
factors  in  the  situation.  To  the  extent  that  the  proposi- 
tion contains  any  justification,  the  author  believes  it  is 
only  within  the  limits  here  noted.  But  this  is  a  vastly 
different  thing  from  proving  that  the  only  proper  test  of 
the  meaning  of  due  process  is  the  preponderant  opinion 
of  the  people. 

In  the  first  place  the  proposition  does  not  square  with 
the  accepted  theory  of  the  courts.  While  the  courts  have 
declined  to  attempt  the  difficult  task  of  a  final  definition 
of  "due  process  of  law,"  it  is  perfectly  clear  from  a  study 
of  the  cases  that  it  has  a  meaning  independent  and  above 
the  preponderant  opinion  of  the  people.  The  courts  have 
construed  it  as  a  protection  to  individuals  of  those  nat- 
ural and  inalienable  rights  that  exist  independently  of 
all  government.  Stated  in  its  more  modern  form,  it  is  a 
guarantee  to  private  right  against  arbitrary  action  or 
against  governmental  interference,  except  where  reason- 
ably made  in  the  furtherance  of  some  legitimate  purpose 
of  government.  When  is  an  interference  "reasonable" 
is  a  difficult  question  and  lies  within  the  sound  discretion 


RECALL  OF  JUDICIAL  DECISIONS  179 

of  the  court.  In  determining  what  are  the  legitimate  pur- 
poses of  government,  the  courts  have  generally  adopted 
the  historical  point  of  view  and  had  recourse  to  the  legal 
and  governmental  theories  prevalent  at  the  time  the  Con- 
stitution was  adopted.  They  have  also  frequently  referred 
to  established  usage,  custom,  or  opinion  as  evidence 
of  what  constitutes  such  a  purpose.  In  the  application 
of  due  process,  the  courts  have  been  profoundly  influenced 
by  the  theories  and  philosophy  underlying  the  common 
law,  and  their  attempt  to  determine  what  is  an  arbitrary 
interference  with  private  right  has  frequently  seemed  to 
be  an  effort  to  retain  substantially  the  same  degree  of 
relativity  between  private  right  and  public  welfare  that 
prevailed  in  the  theories  of  the  common  law.  As  new  and 
greater  public  needs  appeared  the  courts  have  seemed 
willing  to  allow  corresponding  increases  in  the  restraints 
on  private  rights,  thus  seeking  to  preserve  the  established 
balance  between  the  two. 

The  following  quotation  from  Hurtado  v.  Cali- 
fornia,1 a  leading  case  in  defining  the  meaning  of  "due 
process,"  clearly  establishes  the  principle  that  the  provi- 
sion under  discussion  has  an  important,  independent 
meaning  and  that  instead  of  being  identical  with  public 
opinion  that  its  purpose  is  to  protect  the  rights  of  minori- 
ties uagainst  the  power  of  numbers."  "In  this  country 
written  constitutions  were  deemed  essential  to  protect  the 
rights  and  liberties  of  the  people  against  the  encroach- 
ments of  power  delegated  to  their  governments,  and  the 
provisions  of  Magna  Charta  were  incorporated  into  the 
bills  of  rights.  They  were  limitations  upon  all  the  powers 
of  government,  legislative  as  well  as  executive  and  judi- 
cial. 

"It  necessarily  happened,  therefore,  that  as  these  broad 

M10  U.  S.f  p.  516. 


180  POPULAR  GOVERNMENT 

and  general  maxims  of  liberty  and  justice  held  in  our  sys- 
tem a  different  place  and  performed  a  different  function 
from  their  position  and  office  in  English  constitutional 
history  and  law,  they  would  receive  and  justify  a  cor- 
responding and  more  comprehensive  interpretation.  Ap- 
plied in  England  only  as  guards  against  executive  usurpa- 
tion and  tyranny,  here  they  have  become  bulwarks  also 
against  arbitrary  legislation;  but,  in  that  application,  as 
it  would  be  incongruous  to  measure  and  restrict  them  by 
the  ancient  customary  English  law,  they  must  be  held  to 
guarantee,  not  particular  forms  of  procedure,  but  the 
very  substance  of  individual  rights  to  life,  liberty,  and 
property.  *  *  * 

"Arbitrary  power,  enforcing  its  edicts  to  the  injury  of 
the  persons  and  property  of  its  subjects,  is  not  law, 
whether  manifested  as  the  decree  of  a  personal  monarch 
or  of  an  impersonal  multitude.  And  the  limitations  im- 
posed by  our  constitutional  law  upon  the  action  of  the 
government,  both  state  and  national,  are  essential  to  the 
preservation  of  public  and  private  rights,  notwithstand- 
ing the  representative  character  of  our  political  institu- 
tions. The  enforcement  of  these  limitations  by  judicial 
process  is  the  device  of  self-governing  communities  to 
protect  the  rights  of  individuals  and  minorities,  as  well 
against  the  power  of  numbers  as  against  the  violence  of 
public  agents  transcending  the  limits  of  lawful  authority, 
even  when  acting  in  the  name  and  wielding  the  force  of 
the  government." 

In  the  quotation  from  Mr.  Justice  Holmes  upon  which 
so  much  reliance  has  been  placed,  it  would  be  inaccurate 
to  impute  the  meaning  which  has  been  implied  by  the 
advocates  of  the  recall.  In  determining  whether  a  given 
interference  with  private  right  is  a  reasonable  method  of 
furthering  some  legitimate  purpose  of  government,  the 


RECALL  OF  JUDICIAL  DECISIONS  181 

court  will  frequently  have  recourse  to  "usage  and  pre- 
ponderant opinion"  as  evidence  to  be  considered,  particu- 
larly when  a  clear  statement  of  all  the  facts  and  conditions 
is  not  at  hand.  In  Otis  and  Gassman  v.  Parker1  the  su- 
preme court,  in  a  decision  written  by  Mr.  Justice  Holmes, 
had  occasion  to  deal  with  the  relation  of  public  opinion 
to  the  constitutionality  of  a  police  power  regulation,  the 
validity  of  which  had  been  attacked  as  in  conflict  with 
due  process.  The  law  prohibited  all  contracts  for  the 
sale  of  corporate  stocks  on  margin  or  for  future  delivery. 
The  specific  question  before  the  court  was  whether  this 
was  a  reasonable  means  of  accomplishing  a  legitimate 
purpose  of  government,  viz.,  the  prevention  of  gambling, 
or  whether  it  was  an  arbitrary  interference  with  private 
rights.  The  court  said:  "Even  if  the  provision  before 
us  should  seem  to  us  not  to  have  been  justified  by  the  cir- 
cumstances locally  existing  in  California  at  the  time  when 
it  was  passed,  it  is  shown  by  its  adoption  to  have  ex- 
pressed a  deep-seated  conviction  on  the  part  of  the  people 
concerned  as  to  what  that  policy  required.  Such  a  deep- 
seated  conviction  is  entitled  to  great  respect.  If  the  state 
thinks  that  an  admitted  evil  cannot  be  prevented  except 
by  prohibiting  a  calling  or  transaction  not  in  itself  neces- 
sarily objectionable,  the  courts  cannot  interfere,  unless,  in 
looking  at  the  substance  of  the  matter,  they  can  see  that 
it  'is  a  clear,  unmistakable  infringement  of  rights  secured 
by  the  fundamental  law.9  "  (The  italics  are  the  author's.) 
It  should  be  noted  here  that  although  there  was  a 
"deep-seated  conviction"  the  court  did  not  regard  that  as 
final,  but  only  "entitled  to  great  respect,"  and  that  even 
then  the  court  would  interfere  if  there  was  "a  clear  un- 
mistakable infringement  of  rights  secured  by  the  funda- 
mental law."  Here  is  a  specific  utterance  by  the  same 
M87  U.  S.,  p.  606. 


182  POPULAR  GOVERNMENT 

justice  to  the  effect  that  a  deep-seated  conviction  (not  a 
mere  preponderant  opinion),  would  be  interfered  with 
by  the  court  if  in  clear  conflict  with  the  due  process  pro- 
vision of  the  Constitution. 

The  second  objection  to  the  soundness  of  the  theory 
of  preponderant  opinion  is  that  it  is  absolutely  inconsist- 
ent with  the  doctrine  of  constitutional  restraints  and 
judicial  review,  of  which  the  due  process  clause  is  an  in- 
herent part.  There  can  be  no  doubt  that  the  Bill  of  Rights 
was  adopted,  among  other  things,  to  prevent  the  tyranny 
of  the  majority.  To  make  this  effective  there  were  adopted 
the  theories  of  judicial  review  and  the  independence 
of  the  judiciary,  in  order  that  the  people  might  not  indi- 
rectly evade  those  restraints  through  the  manipulation  of 
the  courts.  In  the  face  of  these  unquestioned  facts,  to 
argue  that  due  process  means  that  which  is  sanctioned  by 
prevailing  opinion,  is  to  formulate  a  theory  which  is 
absolutely  in  defiance  of  established  fact.  To  accept  this 
theory  would  be  to  repudiate  the  specific  purpose  and 
intent  with  which  the  doctrine  of  constitutional  restraints 
and  judicial  independence  was  created.  The  judicial  adop- 
tion of  such  a  principle  would  be  a  palpable  rejection  of 
the  obvious  purpose  and  intention  of  the  Constitution,  a 
deliberate  and  fundamental  alteration  of  that  instrument 
by  the  process  of  judicial  usurpation. 

Let  us  now  examine  this  theory  in  the  light  of  its  prac- 
tical operation.  In  the  preceding  chapter  we  considered 
the  case  In  re  Lee  Sing,  in  which  the  city  and  county 
of  San  Francisco,  California,  enacted  an  ordinance  com- 
pelling all  Chinese  persons  to  move  their  residence  and 
places  of  business  to  a  certain  designated  district,  or 
outside  of  the  city,  within  a  period  of  sixty  days.  It  was 
a  brutal  and  tyrannical  exercise  of  governmental  power 
which  the  court  immediately  held  to  be  void.  Does  any 


RECALL  OF  JUDICIAL  DECISIONS  183 

one  suppose  that  the  court  would  have  held  differently 
upon  the  proper  proof  that  the  prevailing  opinion  of  the 
people  of  that  state  favored  such  discrimination?  The 
facts  seemed  to  be  that  public  opinion  did  favor  that  and 
similar  legislation  very  strongly.  Did  it  for  that  reason 
become  constitutional?  Should  it  for  that  reason  have 
become  a  valid  exercise  of  power?  And  yet  that  is  the 
position  that  the  advocates  of  the  recall  would  be  forced 
to  take. 

In  some  states  there  has  been  a  strong  public  opinion 
in  favor  of  denying  to  certain  races  access  to  specified 
businesses  and  occupations,  and  such  attempts  have  actu- 
ally been  made  under  some  pretext  of  legitimate  public 
policy.  Does  the  fact  that  it  is  prompted  by  the  desire 
of  the  majority  make  it  valid?  Is  it  the  part  of  sound 
wisdom  and  good  public  policy,  and  does  it  accord  with 
the  best  traditions  of  American  freedom  and  love  of  jus- 
tice, to  create  a  device  by  which  a  majority  of  the  public, 
aroused  for  the  time  being  by  racial  prejudice  and  hatred, 
could  the  more  easily  consummate  such  a  program  of  in- 
justice and  tyranny?  This  is  one  aspect  of  the  application 
of  the  recall  that  its  honest  advocates  must  squarely  face. 
They  seem  to  go  on  the  pleasant  assumption  that  it  will 
be  used  only  to  correct  unfortunate  mistakes.  But  this 
assumption  of  majority  omnipotence  is  violently  nega- 
tived by  the  facts  of  American  experiences.  To  this  as- 
sumption, Mr.  Elihu  Root,  in  addressing  the  New  York 
Bar  Association,  made  an  eloquent  and  forceful  protest. 
UA  sovereign  people  which  declares  that  all  men  have  cer- 
tain inalienable  rights,  and  imposes  upon  itself  the  great 
impersonal  rules  of  conduct  deemed  necessary  for  the 
preservation  of  those  rights,  and  at  the  same  time  de- 
clares that  it  will  disregard  those  rules  whenever,  in  any 
particular  case,  it  is  the  wish  of  a  majority  of  its  voters  to 


184  POPULAR  GOVERNMENT 

do  so,  establishes  as  complete  a  contradiction  to  the 
fundamenal  principles  of  our  Government  as  it  is  possi- 
ble to  conceive.  It  abandons  absolutely  the  conception 
of  a  justice  which  is  above  majorities,  of  a  right  in  the 
weak  which  the  strong  are  bound  to  respect.  It  denies 
the  vital  truth  taught  by  religion  and  realized  in  the  hard 
experience  of  mankind,  and  which  has  inspired  every  con- 
stitution America  has  produced  and  every  great  declara- 
tion for  human  freedom  since  Magna  Charta — the  truth 
that  human  nature  needs  to  distrust  its  own  impulses  and 
passions,  and  to  establish  for  its  own  control  the  restrain- 
ing and  guiding  influence  of  declared  principles  of 
action." 

Since  due  process  of  law  means  something  more  than 
the  preponderant  opinion  of  the  people,  and  since  its 
meaning  involves  questions  of  the  most  complicated  and 
intangible  nature,  the  question  then  remains  as  to  the 
best  meaning  of  interpreting  and  applying  it.  Can  this 
delicate  and  important  task  be  best  done  by  a  court, 
trained  and  schooled  in  the  technique  and  policy  of  the 
law,  and  where  decisions  are  only  rendered  after  a  care- 
ful hearing  and  investigation  by  attorneys  and  specialists 
on  both  sides  of  the  case?  Or  shall  we  gain  better  results 
by  allowing  such  a  judgment  of  experts  to  be  overruled 
by  a  vote  of  the  people,  who  are  not  lawyers,  who  are 
not  experts,  and  who  have  never  heard  arguments  or 
examined  the  facts  on  either  side  ?  Under  which  system 
shall  we  secure  the  keenest,  the  most  searching,  and  the 
most  statesmanlike  interpretation  of  this  fundamental 
guarantee  ?  In  which  way  can  the  people  govern  them- 
selves the  most  wisely,  by  trying  to  perform  this  techni- 
cal and  delicate  task  themselves,  or  by  confiding  it  to  ; 
an  independent  judiciary,  who  have  been  selected  because 
of  their  peculiar  abilities  for  this  specific  task,  and  whose 


RECALL  OF  JUDICIAL  DECISIONS  185 

decision  is  made  only  after  careful  hearing  and  investi- 
gation, and  under  circumstances  that  secure  the  best  guar- 
antees of  a  temperate,  honest,  and  impartial  judgment? 

Perhaps  a  little  more  light  may  be  thrown  upon  this 
situation  by  the  consideration  of  one  of  the  decisions  that 
has  been  the  basis  of  much  of  the  criticism  of  the  courts. 
The  state  legislature  of  New  York  enacted  a  law  pro- 
hibiting the  employment  of  laborers  in  bake  shops  more 
than  ten  hours  per  day.  On  a  writ  of  error  to  the  United 
States  Supreme  Court,  it  was  contended  that  the  law  was 
void  because  in  conflict  with  the  due  process  provision 
of  the  Constitution,  in  that  it  constituted  an  arbitrary  in- 
terference with  the  liberty  of  contract  of  the  employer  and 
employee.  The  law  was  held  unconstitutional  by  a  five  to 
four  decision.1  The  validity  of  the  law  as  an  interference 
with  liberty  of  contract  was  defended  upon  the  ground 
that  this  particular  regulation  of  private  right  was  a  rea- 
sonable method  of  accomplishing  one  of  the  legitimate 
purposes  of  government,  viz.,  the  protection  of  the  public 
health.  It  was  admitted  that  the  protection  of  public 
health  was  a  legitimate  purpose  of  government,  and  that 
a  reasonable  regulation  of  individual  right,  that  would 
contribute  materially  to  that  end,  would  be  a  constitu- 
tional exercise  of  the  police  power.  The  majority  of  the 
court,  speaking  through  Mr,  Justice  Peckham,  were  of 
the  opinion  that  the  statute  in  question  had  no  material 
relation  to  the  health  of  the  public  or  the  workers,  and 
therefore,  that  the  law  was  merely  an  arbitrary  interfer- 
ence with  private  rights  and  within  the  prohibition  of  the 
due  process  clause. 

The  following  quotations  from  the  opinion  of  the 
majority  indicate  very  clearly  their  position.  "It  must, 
of  course,  be  conceded  that  there  is  a  limit  to  the  valid 
*Lochner  v.  New  York,  198  U.  S.,  p.  45. 


*Lochn 


186  POPULAR  GOVERNMENT 

exercise  of  the  police  power  by  the  state.  There  is  no 
dispute  concerning  this  general  proposition.  Otherwise 
the  fourteenth  amendment  would  have  no  efficacy  and  the 
legislatures  of  the  states  would  have  unbounded  power, 
and  it  would  be  enough  to  say  that  any  piece  of  legisla- 
tion was  enacted  to  conserve  the  morals,  the  health,  or 
the  safety  of  the  people ;  such  legislation  would  be  valid, 
no  matter  how  absolutely  without  foundation  the  claim 
might  be.  The  claim  of  the  police  power  would  be  a  mere 
pretext — become  another  and  delusive  name  for  the  su- 
preme sovereignty  of  the  state  to  be  exercised  free  from 
constitutional  restraint.  *  *  * 

"It  is  a  question  of  which  of  two  powers  or  rights  shall 
prevail — the  power  of  the  state  to  legislate  or  the  right 
of  the  individual  to  liberty  of  person  and  freedom  of 
contract.  The  mere  assertion  that  the  subject  relates, 
though  but  in  a  remote  degree,  to  the  public  health,  does 
not  necessarily  render  the  enactment  valid.  The  act  must 
have  a  more  direct  relation,  as  a  means  to  an  end,  and 
the  end  itself  must  be  appropriate  and  legitimate,  before 
an  act  can  be  held  to  be  valid  which  interferes  with  the 
general  right  of  an  individual  to  be  free  in  his  person 
and  in  his  power  to  contract  in  relation  to  his  own 
labor.  *  *  * 

"We  think  the  limit  of  the  police  power  has  been 
reached  and  passed  in  this  case.  There  is,  in  our  judg- 
ment, no  reasonable  foundation  for  holding  this  to  be 
necessary  or  appropriate  as  a  health  law  to  safeguard  the 
public  health,  or  the  health  of  the  individuals  who  are 
following  the  trade  of  a  baker." 

The  point  of  conflict  between  the  majority  and  the 
minority  is  illustrated  in  these  words  from  the  dissent- 
ing opinion  of  Mr.  Justice  Harlan.  "There  are  many 
reasons  of  a  weighty,  substantial  character,  based  upon 


RECALL  OF  JUDICIAL  DECISIONS  187 

the  experience  of  mankind,  in  support  of  the  theory  that, 
all  things  considered,  more  than  ten  hours'  steady  work 
each  day,  from  week  to  week,  in  a  bakery  or  confec- 
tionery establishment,  may  endanger  the  health  and 
shorten  the  lives  of  the  workmen,  thereby  diminishing 
their  physical  and  mental  capacity  to  serve  the  state  and 
to  provide  for  those  dependent  upon  them. 

"If  such  reasons  exist  that  ought  to  be  the  end  of  this 
case,  for  the  state  is  not  amenable  to  the  judiciary,  in 
respect  of  its  legislative  enactments,  unless  such  enact- 
ments are  plainly,  palpably,  beyond  all  question,  incon- 
sistent with  the  Constitution  of  the  United  States.1' 

The  significant  thing  about  this  decision  is  that  the 
only  point  of  difference  between  the  two  decisions  is  as 
to  whether  the  law  did  or  did  not  affect  the  public  health. 
There  was  no  difference  as  to  the  meaning  of  the  Consti- 
tution. It  was  purely  a  question  of  fact.  The  minority 
thought  that  working  over  ten  hours  a  day  might  materi- 
ally affect  the  health  of  the  workers,  and  the  majority 
thought  otherwise.  It  is  the  opinion  of  the  writer  that 
the  minority  were  right.  It  necessarily  follows  that  an 
accurate  disposition  of  this  particular  case  (and  there 
are  many  other  cases  that  likewise  turn  on  questions  of 
fact)  depended  upon  an  adequate  survey  of  the  facts 
and  conditions  that  were  involved.  This  would  have  in- 
volved an  investigation  of  the  conditions  under  which 
laborers  worked  in  the  bake  shops  of  New  York,  the  na- 
ture of  their  work,  and  the  effect  of  these  conditions  upon 
the  health  of  a  normal  man.  If  they  worked  in  hot,  ill- 
ventilated  bake  shops,  where  there  was  much  flour  and 
dust  in  the  air,  and  if  such  conditions  were  conducive  to 
tuberculosis,  it  is  conceivable  that  bake  shops  might  be- 
come the  distributing  centers  for  the  germs  of  this  dis- 
ease. To  have  come  to  an  intelligent  judgment  here,  it 


188  POPULAR  GOVERNMENT 

would  have  been  necessary  to  have  had  the  results  of  a 
careful  survey  of  the  bake  shops  as  well  as  the  expert 
advice  of  authorities  on  public  health  who  could  have  ex- 
plained what  relations,  if  any,  existed  between  the  actual 
conditions  in  the  shops  and  the  health  of  a  normal  man. 
Unfortunately  the  court  had  no  such  machinery  by  which 
such  an  investigation  could  have  been  made  and  the  re- 
sourcefulness and  ingenuity  of  counsel  had  not  been  ade- 
quate to  the  task,  with  the  result  that  the  court  was  com- 
pelled to  decide  the  matter  according  to  its  own 
unguided  judgment. 

Another  excellent  illustration  of  this  same  situation  is 
afforded  by  the  well-known  case  of  In  re  Jacobs,1  which 
has  also  been  the  object  of  much  criticism  by  those  who 
favor  the  recall.  The  statute  in  question  prohibited  uthe 
manufacture  of  cigars"  and  the  preparation  of  tobacco 
in  any  form"  on  any  floor  of  any  building  in  which  more 
than  three  families  lived  "independently  of  one  another" 
and  did  their  cooking  upon  the  premises.  The  law  was 
limited  to  cities  of  over  500,000  population.  The  relator 
was  arrested  for  the  manufacture  of  cigars  in  such  a 
building.  It  was  a  building  of  four  stories,  there  being 
one  apartment  of  seven  rooms  on  each  floor.  The  relator 
lived  with  his  wife  and  two  children  in  one  of  these  apart- 
ments and  used  one  of  the  rooms  for  his  work.  The  evi- 
dence showed  that  the  smell  of  the  tobacco  did  not  pene- 
trate to  the  other  rooms  of  the  apartment.  The  court 
held  the  law  to  be  void  on  the  ground  that  there  was  no 
reasonable  relation  between  the  interference  with  private 
rights  and  the  public  health  which  was  supposed  to  be 
the  purpose  of  the  act.  The  court  said:  "Nor  was  it  (the 
statute)  intended  to  improve  or  protect  the  health  of  the 
occupants  of  tenement  houses.  If  there  are  but  three  f  ami- 
a98  N.  Y.,  p.  98. 


RECALL  OF  JUDICIAL  DECISIONS  189 

lies  in  the  tenement  house,  however  numerous  or  grega- 
rious their  members  may  be,  the  manufacture  is  not  for- 
bidden; and  it  matters  not  how  large  the  number  of  the 
occupants  may  be  if  they  are  not  divided  into  more  than 
three  families  living  and  cooking  independently.  *  *  * 
What  possible  relation  to  the  health  of  the  occupants 
of  a  large  tenement  house  would  cigar  making  in  one  of 
its  remote  rooms  have?  If  the  legislature  had  in  mind 
the  protection  of  the  occupants  of  tenement  houses,  why 
was  the  fact  confined  in  its  operations  to  the  two  cities 
only?  It  is  plain  that  this  is  not  a  health  law,  and  that  it 
has  no  relation  whatever  to  the  public  health.  *  *  *  When 
a  health  law  is  challenged  in  the  courts  as  unconstitutional 
on  the  ground  that  it  arbitrarily  interferes  with  personal 
liberty  and  private  property  without  due  process  of  law, 
the  courts  must  be  able  to  see  that  it  has  at  least  in  fact 
some  relation  to  the  public  health,  that  the  public  health 
is  the  end  actually  aimed  at,  and  that  it  is  appropriate 
and  adapted  to  that  end.  This  we  have  not  been  able  to 
see  in  this  law,  and  we  must,  therefore,  pronounce  it  un- 
constitutional and  void." 

In  commenting  on  this  case  on  a  previous  occasion  the 
writer  made  the  following  statement  which  seems  perti- 
nent here:  "It  is  clear  from  the  foregoing  that  this 
decision  turned  on  the  question  of  fact,  of  whether  there 
was  any  reasonable  relation  between  the  interference  of 
private  rights  and  the  interests  of  public  health.  The  court 
may  have  been  mistaken  in  its  judgment,  but  the  mistake 
was  one  of  fact  and  not  of  law.  While  it  must  be  admit- 
ted that  the  court  did  not  seem  anxious  to  resolve  all 
doubts  in  favor  of  the  validity  of  the  statute,  it  does  not 
appear  obvious,  at  least  to  those  uninitiated  into  the 
technical  facts  regarding  tenement  house  conditions  and 
the  effects  of  the  smell  of  tobacco  upon  health,  that  there 


190  POPULAR  GOVERNMENT 

was  any  reasonable  relation  between  the  act  and  the  pub- 
lic health.  Such  might  appear  to  be  the  fact  if  the  proper 
evidence  was  available.  If  the  manufacture  of  tobacco 
in  the  same  building  where  people  live  is  injurious  to 
their  health,  and  that  fact  can  be  scientifically  demon- 
strated, there  can  be  no  doubt  that  a  statute  carefully 
adjusted  to  the  particular  problem  would  be  upheld.  It 
is  the  writer's  firm  belief  that  practically  all  legislation 
that  can  be  scientifically  demonstrated  to  be  desirable 
can  be  maintained  in  the  courts.  It  is  well  to  remember, 
however,  that  in  such  cases  the  validity  of  the  legislation 
will  largely  depend  upon  technical  questions  of  fact, 
which,  perhaps,  the  housing  expert  may  alone  possess, 
and  which  the  courts  have  no  machinery  to  acquire.  Those 
interested  in  housing  legislation  would  render  a  valuable 
service  if  they  could  keep  in  touch  with  all  litigation  in- 
volving the  constitutional  validity  of  housing  laws  in 
order  to  see  that  counsel  in  charge  are  familiar  with  the 
particular  facts  which  form  the  constitutional  justification 
for  the  law."1 

Here  is  a  very  practical  problem  that  lies  at  the  very 
basis  of  much  of  the  difficulty  with  judicial  decisions  in- 
volving conflicts  between  the  police  power  and  due  proc- 
ess. These  decisions  to  a  very  large  extent  depend  upon 
the  facts  and  conditions  of  life  to  which  the  legislation  is 
applied.  As  our  civilization  and  life  becomes  increasingly 
complex,  these  facts  become  increasingly  difficult  of  solu- 
tion, and  yet  the  wise  administration  of  law  depends  upon 
their  accurate  determination.  And  yet  we  have  made  no 
effort  to  provide  the  courts  with  the  machinery  and  the 
methods  of  solving  the  problems  that  we  have  forced 
upon  them.  Instead  we  are  spending  our  time  and  effort 
in  destructive  criticism. 

1  "Housing  Problems  in  America,"  Proceedings  of  the  Fourth  Na- 
tional Conference  on  Housing,  1915,  pp.  13-14. 


RECALL  OF  JUDICIAL  DECISIONS  191 

Professor  Pound  has  made  an  apt  suggestion  to- 
ward the  solution  of  this  very  pressing  problem.  "Be- 
fore we  can  have  sound  theories  here  we  need  facts 
on  which  to  build  them.  Even  after  we  get  sound 
theories,  we  shall  need  facts  to  enable  us  to  apply 
them.  Hard  as  it  is  for  legislators  to  ascertain  social 
facts,  it  is  even  more  difficult  for  courts  with  the  ma- 
chinery which  our  judicial  organization  affords.  As  a 
general  proposition,  courts  have  no  adequate  machinery 
for  getting  at  the  facts  required  for  the  exercise  of  their 
necessary  law-making  function.  As  things  are,  our  courts 
must  decide  on  the  basis  of  matters  of  general  knowledge 
and  on  supposed  accepted  principles  of  uniform  applica- 
tion. Except  as  counsel  furnish  material  in  their  printed 
arguments,  the  court  has  no  facilities  for  obtaining  knowl- 
edge of  social  facts  comparable  to  hearings  before  com- 
mittees, testimony  of  specialists  who  have  conducted 
detailed  investigations,  and  other  means  of  the  sort  avail- 
able to  the  legislature.  Yet  judges  must  make  law  as 
well  as  apply  it,  and  judicial  reference  bureaus  not  re- 
motely unlike  Dr.  McCarthy's  epoch-making  contribution 
to  practical  legislative  law-making  are  not  unlikely  to 
develop.  The  laboratories  and  staffs  of  experts  which 
are  coming  to  be  attached  to  some  Continental  tribunals 
strongly  suggest  this."1 

This  importance  of  the  accurate  determination  of  the 
facts  and  conditions  involved  in  judicial  decisions  where 
the  police  power  and  due  process  are  involved,  is  recog- 
nized by  Professor  Lewis  in  his  very  able  article  in  de- 
fense of  the  recall.  "The  widespread  feeling  among 
laymen  against  courts,  and  even  against  written  consti- 
tutions, which  is  a  new  and,  I  believe,  an  alarming  feature 

1  "Legislation  as  a  Social  Function,"  Am.  Jour,  of  Sociology,  May, 
1913,  p.  767. 


192  POPULAR  GOVERNMENT 

in  the  current  thought  of  the  day,  is  due  to  the  action  of 
the  courts  in  holding  unconstitutional  much  of  the  legis- 
lation designed  to  rectify  some  of  the  more  glaring  evils 
of  our  present  industrial  system,  such  as  statutes  regulat- 
ing hours  of  labor,  work  in  tenements,  workmen's  com- 
pensation acts,  etc.  From  the  point  of  view  of  those 
keenly  interested  in  such  questions  and  coming  in  daily 
contact  with  the  classes  of  the  community  practically 
affected  by  them,  the  effectiveness  of  such  legislation  often 
necessitates  provisions  which,  to  persons  brought  up  under 
the  economic  and  social  philosophy  of  a  few  decades  ago, 
appear  unnecessary  and  arbitrary.  Thus,  much  legisla- 
tion which  has  been  passed  after  years  of  effort  on  the 
part  of  those  having  special  knowledge  of  existing  condi- 
tions, and  representing  what  to  them,  and  indeed  to  the 
average  man,  is  plain  social  justice,  has  appeared  to  some 
judges  as  unnecessary  and  arbitrary,  and  therefore  has 
been  held  unconstitutional,  under  the  due  process  of  law 
clause  in  the  constitution/'1 

If  this  is  an  important  and  fundamental  problem,  and 
the  advocates  of  the  recall  seem  to  think  it  is,  then  the 
question  is  presented  of  the  best  method  of  its  solution. 
Their  remedy  is  to  leave  it  to  the  people.  Although  it  is 
so  complicated  and  involves  such  a  grasp  of  facts  and 
conditions  outside  of  the  range  of  information  of  the 
courts  and  others  not  connected  with  the  particular  prob- 
lem aimed  at,  their  solution  is  to  leave  it  to  popular  vote. 
This  imputes  an  omnipotence  to  popular  judgment  on 
difficult  questions  of  fact  that  baffles  analysis.  As  against 
that,  the  suggestion  of  Professor  Pound  sounds  sane, 
practical,  and  constructive.  The  establishment  of  an  in- 
vestigating bureau,  manned  with  competent  experts,  and 

*"New   Method   of    Constitutional   Amendment  by   Popular   Vote," 
Annals  of  the  Am.  Academy,  Vol.  XLIII,  p.  311. 


RECALL  OF  JUDICIAL  DECISIONS  193 

subject  to  the  order  and  directions  of  the  court,  which 
could  make  adequate  investigation  of  all  facts  and  condi- 
tions which  the  court  deemed  pertinent  to  the  cases  before 
it  for  decision,  would  be  an  actual  contribution  to  the 
cause  of  judicial  efficiency  and  social  legislation,  and 
thoroughly  consistent  with  the  best  principles  and  tradi- 
tions of  our  constitutional  system.  The  relation  of  such 
a  bureau  to  the  court  would  not  be  unlike  the  relations 
existing  between  the  masters  in  chancery  and  a  court  of 
equity.  The  special  investigators  sent  out  by  various  ad- 
ministrative commissions,  whose  reports  afford  the  basis 
for  the  official  action  of  the  commission,  is  a  develop- 
ment along  the  same  line  that  has  been  of  great  value. 
As  compared  with  this  suggestion,  the  proposal  for  the 
recall  of  judicial  decisions  seems  not  only  dangerous  but 
futile. 

The  second  basis  upon  which  the  defense  of  the  recall 
of  judicial  decisions  has  been  made  to  rest  is  the  theory 
that  the  recall  does  not  reverse  the  decision  of  the  court 
but  merely  amends  the  constitution  so  as  to  make  a  specific 
exception  of  the  law  then  before  the  court.  It  is  argued 
that  this  is  a  more  desirable  method  of  amending  the  con- 
stitution since  it  can  be  restricted  to  the  specific  law  in- 
volved, without  abandoning  the  fundamental  guarantee  in 
so  far  as  it  may  apply  to  other  cases.  In  other  words,  the 
people  are  compelled  to  choose  between  abandoning  the 
constitutional  provision  or  the  statute,  whereas  under  the 
doctrine  of  the  recall,  they  could  retain  the  general  con- 
stitutional guarantee,  and  merely  engraft  an  exception  to 
it  in  favor  of  the  proposed  statute. 

Professor  Lewis  is  afraid  that  unless  some  such  meas- 
ure is  provided  the  people  may  be  tempted  to  aban- 
don certain  very  important  constitutional  restraints,  in 
their  desire  to  gain  certain  types  of  legislative  relief.  "It 


194  POPULAR  GOVERNMENT 

takes  no  prophet,"  observes  Professor  Lewis,  "to  fore- 
tell that,  with  the  prevailing  desire  for  legislation  which 
will  correct  some  of  the  more  obvious  defects  of  our 
social  and  economic  system,  if  the  courts  of  a  state  are 
out  of  sympathy  with  such  legislation,  it  will  not  be  long 
before,  by  successive  amendments,  the  due  process  of  law 
clause  of  the  constitution  of  the  state  will  be  practically 
abrogated.  If  no  other  system  be  provided,  the  present 
method  of  constitutional  amendment,  while  permitting 
the  people  ultimately  to  express  their  desires  in  the  con- 
stitutions, will,  in  the  necessarily  short  statement  of  spe- 
cific amendments,  endanger  other  constitutional  guaran- 
tees of  their  liberties  which  all  consider  essential  to  retain. 

"The  advantages  of  Colonel  Roosevelt's  suggestion  as 
applied  to  such  instances  as  those  referred  to  are  obvious. 
He  provides,  it  will  be  observed,  a  method  of  obtaining 
legislation  which  does  correspond  to  the  prevailing  ideas 
of  fairness  and  social  justice,  while  at  the  same  time  re- 
taining in  our  constitutions  the  principle  that  no  act  which 
is  arbitrary  or  unfair  should  be  recognized  as  law.5'1 

At  first  sight  this  seems  a  very  attractive  program.  It 
is  not  revolutionary  or  radical,  and  is  apparently  con- 
structive. But  a  closer  analysis  of  its  actual  operation 
will  show  that  it  has  certain  inherent  difficulties  that  are 
fatal  to  its  efficiency,  both  as  a  constructive  measure  and 
as  a  practical  instrument  of  popular  control.  The  first 
objection  is  the  constitutional  rigidity  given  to  any  statute 
which  the  people  may  adopt  as  an  exception  to  the  con- 
stitutional provision  that  the  court  has  held  to  have  been 
violated  by  the  act  For  by  making  the  law  an  exception 
to  the  Constitution,  it  is  engrafted  on  the  Constitution, 
and  is  then  beyond  the  range  of  legislative  action.  By 
this  process  ordinary  measures  of  legislation,  which  gen- 


RECALL  OF  JUDICIAL  DECISIONS  195 

erally  require  to  be  changed  in  their  details  from  year  to 
year,  as  new  experience  exposes  defects  in  the  details  or 
principles  of  the  law,  is  placed  beyond  the  reach  of  ordi- 
nary legislative  action.  This  cannot  be  said  to  be  a  whole- 
some thing  for  social  legislation,  although  it  is  for  the 
protection  of  such  laws  that  the  recall  is  being  urged. 

Mr.  Charles  H.  Hamill  gives  an  excellent  statement  of 
this  objection.  "The  theory  of  a  written  constitution  is 
that  it  embodies  certain  general  fundamental  and  endur- 
ing principles  essential  to  liberty  and  creates  a  machinery 
of  government  for  their  maintenance.  With  changing 
economic  conditions  come  inevitably  changes  in  current 
economic  thought,  which  naturally  tends  to  express  it- 
self in  law.  If  shifting  theories  are  to  be  embodied  not 
in  plastic  statutory  law,  but  in  rigid  constitutional  law, 
not  only  will  there  be  an  abrupt  departure  from  the  the- 
ory of  the  written  constitution,  but  we  shall  have  entered 
upon  a  work  of  endless  confusion.  An  elaborate  em- 
ployers' liability  act,  for  instance,  is  made  a  part  of  the 
constitution;  not  only  its  general  principles,  but  all  its 
details,  are  endowed  with  constitutional  vigor.  After  a 
few  months'  experiment  one  of  its  provisions  proves  un- 
wise, or  perhaps  in  conflict  with  another  provison.  The 
constitution  must  be  amended!  What  was  wanted  was 
more  flexibility;  the  result,  more  rigidity!  It  would  not 
be  many  years  before  a  state  constitution  would  look  like 
a  crazy  quilt,  nor  many  more  before  parts  of  it  would  be 
no  more  useful  or  ornamental  than  the  lithograph  of  a 
defeated  candidate  the  day  after  election."1 

The  second  objection  to  the  theory  of  specific  amend- 
ment is  that  it  submits  constitutional  matters  to  popular 
determination  under  circumstances  that  are  not  conducive 
to  the  best  formulation  of  the  calm,  temperate,  and  un- 

1  "Constitutional  Chaos,"  in  Forum,  Vol.  XLVIII,  p.  45. 


196  POPULAR  GOVERNMENT 

biased  judgment  of  the  electorate.  When  a  general  prin- 
ciple is  submitted  without  regard  to  any  particular  situa- 
tion, the  judgment  is  more  impersonal  and  sound.  But 
when  the  principle  is  involved  in  some  striking  relation 
to  a  concrete  incident,  particularly  if  the  incident  be  one 
that  may  arouse  the  passions  or  prejudice,  a  less  mature 
and  deliberate  decision  will  result.  The  action  of  the 
people  of  Switzerland  in  voting  for  the  prohibition  of 
kosher  beef  is  a  case  in  point.  Had  the  general  principle 
of  religious  liberty  been  raised,  with  no  special  reference 
to  any  specific  group,  the  vote  undoubtedly  would  have 
been  in  favor  of  liberty. 

"All  agree,"  observes  Mr.  Hamill,  "that  there  is  no 
more  valuable  right  than  that  of  religious  liberty.  If 
the  people  of  any  state  in  the  Union  today  were  called 
upon  to  vote  'yes'  or  'no'  upon  the  adoption  of  a  reli- 
gious liberty  plank  to  their  constitution,  if  it  had  none, 
they  could  safely  be  counted  upon  to  give  an  overwhelm- 
ing affirmative  vote.  But  suppose  there  should  be  sub- 
mitted to  the  people  the  question  of  whether  some  one 
particular  religious  sect  should  have  freedom  of  worship, 
would  the  vote  be  so  overwhelmingly  affirmative?  The 
intelligence  of  our  people  and  their  interest  in  its  general 
application  may  be  relied  on  to  support  the  proposition 
that  no  man  shall  be  deprived  of  life,  liberty  or  prop- 
erty without  due  process  of  law;  but  could  their  negative 
vote  be  so  confidently  counted  upon  if  there  were  a  pro- 
posal to  take  the  property  of  one  unpopular  corporation 
and  devote  it  to  an  unquestioned  public  good?  Every 
man  will  vote  'no'  to  the  proposition  that  the  constitution 
shall  be  so  formulated  that  his  property  or  liberty  may 
possibly  be  taken  without  due  process  of  law,  but  would 
the  same  man  so  surely  vote  to  support  a  decision  of  the 
Supreme  Court  holding  void  an  act  requiring  a  Stock 


RECALL  OF  JUDICIAL  DECISIONS  197 

Yards  Company  without  compensation  to  convert  a  sec- 
tion from  the  middle  of  its  yards  into  a  playground  for 
the  children  of  that  congested  neighborhood? 

"When  general  propositions  affecting  all  men  alike  are 
submitted  to  our  vote,  we  are  impelled  by  a  combination 
of  patriotism  and  fairness,  with  self-interest,  to  declare 
in  favor  of  that  which  makes  for  righteousness;  but  it 
would  be  a  most  dangerous  expedient  to  remove  from 
the  control  of  men  trained  by  tradition  and  experience 
to  weigh  the  rights  of  others  and  submit  to  a  general 
vote,  perhaps  in  time  of  great  popular  excitement  and 
prejudice,  the  rights  of  a  small  group  of  men  whose  in- 
terests might,  for  the  time  being,  seem  opposed  to  the 
welfare  of  the  community  at  large."1 

Perhaps  this  is  the  place  for  a  constructive  suggestion 
that  the  author  believes  will  very  materially  aid  in  avoid- 
ing many  of  the  judicial  vetos  that  have  aroused  so  much 
complaint  and  that  have  undoubtedly  done  occasional 
harm.  Many  of  the  laws  held  void,  might  have  been  up- 
held by  the  courts,  had  they  been  properly  drafted,  with 
a  due  regard  to  the  evils  to  be  remedied  and  the  consti- 
tutional provisions  that  were  involved.  Much  abuse  and 
criticism  have  been  given  to  the  courts  that  should  go  to 
those  responsible  for  the  framing  of  the  laws.  A  striking 
example  is  afforded  by  the  case  of  Bonnett  v.  Vallier.2 
Here  the  legislature  enacted  a  tenement  house  law  apply- 
ing alike  to  all  the  towns,  villages,  and  cities  of  the  state. 
The  law  was  apparently  drawn  with  regard  only  to  the 
needs  of  a  large  city,  and  provided  among  other  things 
for  modern  plumbing  appliances,  which  on  account  of 
lack  of  water  and  sewerage  in  some  portions  of  the  state 
would  make  compliance  with  it  impossible.  In  holding 


"136  Wis.,  p.  193. 


198  POPULAR  GOVERNMENT 

the  law  void  because  it  amounted  to  a  prohibition  of  the 
construction  and  enjoyment  of  tenement  houses  and  ex- 
ceeded in  other  ways  the  limits  of  reasonableness,  the 
court  said,   "The  most  striking  general   feature  which 
challenges  our  attention  is  that  it  applies  to  every  part 
of  the  state,  country  districts,  small  cities  and  villages — 
every  portion  is  subject  to  the  same  degree  of  regulation 
as  the  city  of  Milwaukee,  notwithstanding  the  obvious 
fact  *  *  *  that  the  conditions  calling  for  such  interfer- 
ence are  so  widely  different  that  it  would  seem  need  for 
classification  would  have  occurred  to  the  legislative  mind 
at  once,  in  dealing  with  the  matter,  especially  in  view  of 
the  requirements  which  are  entirely  unsuitable  to  loca- 
tions where  water  and  sewer  systems  do  not  exist,  and 
that  calls  for  an  expensive  grade  of  buildings  common 
to  large  cities,  but  which  no  prudent  man  would  seriously 
think  of  erecting  in  some  situations  unless  he  could  afford 
and  desired  to  devote  his  means  to  charitable  uses.  *  *  * 
It  is  impracticable  in  the  extreme,  impossible  would  prob- 
ably not  be  too  strong  a  term  to  use,  to  comply  with  such 
requirements  in  many,  even  most,  portions  of  the  state. 
The  result  is,  that,  except  within  a  very  limited  area,  the 
construction  and  enjoyment  of  even  the  most  insignificant 
kind  of  tenement  houses  is,  in  effect,  prohibited  by  law." 

The  court  has  been  severely  condemned  for  this  deci- 
sion, but  it  is  difficult  to  find  a  sound  basis  for  criticism 
when  all  the  facts  are  taken  into  consideration.  This  mis- 
carriage of  justice,  if  such  it  be,  is  to  be  laid  at  the  doors 
of  those  responsible  for  the  law.  It  was  not  drafted  to 
meet  the  particular  situation  and  conditions.  Conse- 
quently, its  practical  result  was  a  prohibition  and  not  a 
regulation. 

Colonel  Roosevelt  has  given  another  illustration  of  a 
criticism  of  the  courts  when  it  was  a  legislative  defect 


RECALL  OF  JUDICIAL  DECISIONS  199 

that  was  to  blame.  "When  I  was  President,"  he  declared, 
uwe  passed  a  National  Workmen's  Compensation  Act. 
Under  it  a  railway  man  named  Howard,  I  think,  was 
killed  in  Tennessee,  and  his  widow  sued  for  damages. 
Congress  had  done  all  it  could  to  provide  the  right,  but 
the  Court  stepped  in  and  decreed  that  Congress  had 
failed.  Three  of  the  judges  took  the  extreme  position 
that  there  was  no  way  in  which  Congress  could  act  to 
secure  the  helpless  widow  and  children  against  suffering, 
and  that  the  man's  blood  and  the  blood  of  all  similar 
men  when  spilled  should  forever  cry  aloud  in  vain  for 
justice.  This  seems  a  strong  statement,  but  it  is  far  less 
strong  than  the  actual  facts;  and  I  have  difficulty  in  mak- 
ing the  statement  with  any  degree  of  moderation."1 

The  facts  are  that  Congress  had  not  udone  all  that  it 
could,"  for  the  decision  criticized2  held  the  law  was  void 
because  Congress  had  not  confined  it  to  employees  actu- 
ally engaged  in  interstate  commerce,  a  precaution  that 
those  responsible  for  the  law  should  have  taken.  In  1908 
Congress  enacted  a  similar  measure,  this  time  limiting  it 
to  the  employees  actually  so  engaged,  and  thus  avoiding 
a  fatal  infringement  upon  the  constitutional  prerogative 
of  the  states.3  The  equipment  of  deliberative  bodies  with 
legislative  reference  libraries  and  efficient  legislative 
draughtsmen,  who  can  see  that  laws  are  drafted  with  due 
regard  to  constitutional  requirements,  will  be  a  great  con- 
structive aid.  If  those  responsible  for  constructive  legis- 
lation will  seek  to  get  a  sympathetic  understanding  of  the 
purpose,  the  value,  and  the  fundamental  importance  of 
these  constitutional  restraints,  and  if  they  will  see  to  it 
that  their  programs  of  legislation  go  no  farther  than 
their  scientific  investigations  show  the  way,  they  will 


1  "Charter  of  Democracy,"  in  Outlook,  Vol.  100,  p.  390. 
a  Employers  Liability  Cases,  207  U.  S.,  p.  463. 
•Pederson  v.  Del,  Lack.  6-  Wes.  Ry.,  229  U.  S.,  p.  146. 


200  POPULAR  GOVERNMENT 

encounter  few  difficulties  to  any  program  of  genuine  re- 
form. "Constitutional  rights  need  not  bar  the  pathway 
of  social  reform.  Properly  understood  they  serve  as 
guide-posts,  directing  reform  along  legitimate  and  con- 
sistent channels,  and  exacting  at  each  turn,  the  test  of 
scientific  efficiency.  If  this  be  true,  may  it  not  now  be  said 
that  the  framers  of  the  constitutional  guarantees  builded 
even  more  wisely  than  they  knew?" 

We  have  found  that  the  recall  of  judicial  decisions 
rested  upon  two  fundamental  propositions,  the  first  that 
the  true  meaning  of  due  process  of  law  was  determined 
by  the  preponderant  opinion  of  the  people,  and  secondly 
that  a  method  of  specific  amendment  to  the  Constitution 
was  preferable  and  more  elastic  than  the  older  and  estab- 
lished methods.  The  first  proposition  was  not  valid  be- 
cause it  was  not  a  correct  statement  of  the  principle  of 
constitutional  law  involved,  because  it  was  absolutely  in- 
consistent with  the  doctrine  of  constitutional  restraints 
and  judicial  review  of  which  due  process  was  a  component 
part,  and  because  it  facilitated  rather  than  impeded  the 
invasion  of  fundamental  private  rights  by  the  majority. 
The  real  difficulty  in  most  of  the  cases  cited  involved  a 
complicated  question  of  fact  rather  than  a  general  prin- 
ciple of  public  policy,  and  it  seemed  that  such  a  question 
could  be  much  better  determined  by  a  court,  aided,  per- 
haps, by  a  special  bureau,  than  by  a  vote  of  the  people 
who  were  in  no  position  to  know  the  facts. 

The  proposed  method  of  specific  amendment  seemed 
impractical  and  undesirable  since  it  involved  making  the 
statute  a  part  of  the  constitution,  thus  placing  it  beyond 
the  reach  of  that  easy  amendment  and  change  which  is  so 
essential  to  the  development  and  perfection  of  a  legisla- 
tive policy.  Moreover,  it  involved  the  application  of  pub- 
lic opinion  to  fundamental  principle  under  conditions  that 


RECALL  OF  JUDICIAL  DECISIONS  201 

tend  to  warp  and  bias  the  popular  judgment.  Most  of 
the  evils  that  were  aimed  at  will  disappear  if  scientific 
methods  of  legislation  are  employed,  and  the  judg- 
ment of  the  court  is  supplemented  by  the  work  of  compe- 
tent experts  in  providing  an  accurate  statement  of  the 
material  facts  and  conditions  of  modern  life,  to  which 
the  judiciary  will  apply  the  fundamental  principles  of 
law. 


SUGGESTIVE  QUESTIONS  FOR 

CHAPTER  VIII 

I.  If  the  test  of  what  constitutes  due  process  of  law 
be  the  "preponderant  opinion  of  the  people, "  why  was 
its  determination  ever  left  to  the  judiciary?   Is  not  Con- 
gress in  a  much  better  position  to  judge  as  to  what  the 
preponderant  opinion  of  the  people  may  demand? 

II.  Is  the  "preponderant  opinion"  theory  of  the  mean- 
ing of  due  process  of  law  consistent  with  the  doctrine  of 
constitutional  restraints? 

III.  Is  it  consistent  with  the  doctrine  of  judicial  re- 
view? 

IV.  Regardless  of  whether  the  "preponderant  opin- 
ion" theory  be  historically  the  correct  one,  would  it  be 
a  wise  one  to  adopt  now? 

V.  If  the  "preponderant  opinion"  theory  be  histor- 
ically correct,  then  what  was  to  be  gained  by  placing  the 
due  process  clause  in  the  Constitution? 

VI.  Explain  how  the  constitutional  validity  of  laws 
may  be  dependent  upon  questions  of  fact. 

VII.  Is  it  possible  to  have  a  public  opinion  upon  such 
a  question  of  fact  as  is  referred  to  in  the  preceding  ques- 
tion? 

VIII.  Is  the  recall  of  judicial  decisions  inconsistent 
with  the  theory  of  constitutional  restraints? 

IX.  How  could  better  bill  drafting  remedy  some  of 
the  evils  complained  of  by  the  advocates  of  the  recall? 

X.  Why  should  the  recall  be  limited  to  cases  involv- 
ing due  process  and  the  police  power? 

202 


CHAPTER  IX 

THE  RECALL  OF  PUBLIC  OFFICERS 

THE  demand  for  the  recall  of  public  officers  is  the  result 
of  the  same  general  spirit  of  discontent  with  the  opera- 
tions of  representative  government  that  found  expression 
in  the  movement  for  the  initiative  and  referendum.  The 
feeling  among  the  leaders  of  the  propaganda  for  the 
recall  seemed  to  be  that  official  conduct  was  too  fre- 
quently corrupt  or  illegal,  unrepresentative  in  character, 
or  inefficient  in  performance.  It  was  obvious  that  officers 
guilty  of  such  conduct  should  not  be  continued  in  power. 
They,  therefore,  sought  to  provide  the  method  by  wrhich 
the  public  could  retrieve,  in  "firing"  incompetent  officers, 
the  mistakes  they  had  made  in  hiring  them.  It  apparently 
never  occurred  to  the  proponents  of  this  scheme  that 
some  of  the  difficulties  encountered  were  possibly  the  re- 
sult of  the  wrong  methods  of  hiring,  and  that  the  utiliza- 
tion of  the  same  methods  of  "firing"  could  hardly  be  ex- 
pected to  give  greatly  improved  results. 

The  recall  of  public  officers  as  it  has  developed  in 
America  is  a  simple  device  by  which  a  given  percentage 
of  the  voters  (varying  from  twenty-five  to  sixty  per  cent.) 
may,  by  signing  a  petition  which  alleges  the  reasons  for 
the  action,  compel  a  public  officer  to  come  up  for  reelec- 
tion. Other  candidates  may  be  nominated  by  petition 
to  run  against  him.  If  he  does  not  receive  a  plurality  (or 
a  majority  of  the  votes  cast,  depending  upon  the  par- 
ticular law),  he  is  recalled  and  forfeits  the  office.  This 
device  has  been  applied  to  both  state  and  local  elective 
offices  in  some  states  and  in  a  few  cases  to  appointive 

203 


204  POPULAR  GOVERNMENT 

offices.  It  is  therefore  part  of  the  general  movements 
to  apply  indiscriminatingly  the  methods  of  direct  democ- 
racy to  cure  the  evils  of  popular  government.  In  general, 
it  cannot  be  said  to  be  a  very  grave  departure  from  the 
principles  of  government  already  established  in  the  states, 
for  now  most  state  and  local  election  officers  are  chosen 
for  short  terms,  at  the  termination  of  which  they  come 
up  automatically  for  popular  approval,  if  they  desire  to 
continue  in  power.  The  only  change  is  the  petition,  by 
which  a  specified  number  of  the  voters  may  force  an  elec- 
tion before  the  expiration  of  the  stipulated  term. 

Thus  it  appears  that  the  underlying  hypothesis  of  the 
recall  of  officers  is  that  present  methods  of  popular  elec- 
tion are  satisfactory,  and  all  that  we  need  is  to  give  to  the 
electorate  larger  and  fuller  power  in  the  termination  of 
the  official  relation.  But  "As  a  matter  of  record," 
writes  Professor  Beard,  uthe  theory  of  popular  control 
through  a  multiplicity  of  elective  offices  does  not  work 
in  practice.  In  the  case  of  a  large  number  of  officers 
there  is  no  question  of  policy  involved,  because  their 
functions  are  purely  ministerial,  prescribed  by  statutes, 
and  their  discharge  of  these  functions  is  enforceable 
through  the  ordinary  processes  of  law.  No  one  has  been 
able  to  discover  up  to  this  time  why  we  should  select  a 
Republican  state  treasurer  to  serve  with  a  Socialist  state 
veterinarian;  and  it  is  because  the  results  of  state  elec- 
tions, so  far  as  most  of  the  offices  are  concerned,  are  of 
slight  importance  to  anybody  except  the  political  experts, 
that  the  public  is  largely  indifferent  to  the  qualifications 
of  the  minor  candidates.  The  real  failure  of  the  demo- 
cratic theory,  however,  is  due  to  the  fact  that  it  is  abso- 
lutely impossible  to  discriminate  wisely  among  candidates 
for  a  large  number  of  offices.  It  is  a  matter  of  common 
knowledge  that  in  almost  every  state  election  the  only 


THE  RECALL  OF  PUBLIC  OFFICERS          205 

candidates  who  are  seriously  discussed  in  the  press — in 
other  words,  the  only  candidates  upon  whose  qualifica- 
tions and  record  any  light  is  thrown — are  those  seeking 
the  office  of  governor,  and,  in  the  case  of  municipal  elec- 
tions, that  of  mayor.  The  candidates  for  the  minor  state 
offices,  and,  what  is  infinitely  more  important,  the  candi- 
dates for  the  city  council  and  the  legislature,  are  generally 
left  in  the  same  fog  which  envelopes  the  candidates  for 
the  position  of  coroner  or  clerk  of  the  municipal  district 
court.  There  are  of  course  exceptions  to  this  rule,  but 
it  applies  quite  generally  throughout  the  United  States. 

"Now  to  suppose  that  adding  a  system  of  recall  to 
such  a  complex  of  public  offices — already  so  large  as  to 
bewilder  the  voter — will  advance  public  control  over  ad- 
ministration, is  surely  flying  in  the  fact  of  what  may  be 
reasonably  called  the  plain  teachings  of  American  politi- 
cal experience.  It  seems  useless  to  expect  popular  control 
through  the  recall  when  the  inevitable  development  of 
political  machines  has  defeated  popular  control  in  the 
selection  of  officers."1 

The  specific  question  presented  by  the  recall  proposal 
is  the  efficiency  of  public  opinion,  when  invoked  by  the 
petition,  to  pass  an  intelligent  judgment  upon  the  issues 
raised  in  the  petition  and  in  the  recall  election,  which  will 
generally  have  to  do  with  one  or  more  of  three  questions 
as  follows:  Has  the  officer  been  honest  and  acted  ac- 
cording to  the  law?  Has  he  misrepresented  his  constitu- 
ents? Has  he  been  an  efficient  officer?  Obviously  an 
intelligent  conclusion  can  be  formed  only  after  a  careful 
analysis  of  the  three  kinds  of  questions  upon  which  public 
j  opinion  will  be  asked  to  pass,  a  consideration  of  the  vari- 
ous types  of  officers  to  which  it  will  be  applied,  the  prob- 

1  Beard  and  Schultz,  Docwnents  on  the  Initiative  and  Referendum, 
:n.  53-54. 


206  POPULAR  GOVERNMENT 

able  actual  operation  of  the  petition,  and  a  study  of  the 
alternative  methods  of  terminating  the  official  relation. 

We  will  first  consider  the  various  types  of  officers  to 
which  the  recall  may  be  conceivably  applied,  and  they  are 
three  in  number.  The  first  type  we  will  designate  as  those 
purely  political;  that  is,  those  officers  whose  main  function 
is  to  determine  public  policy,  such  as  members  of  the 
state  legislature  or  city  council.  The  second  type  may  be 
described  as  quasi-political;  that  is,  partly  policy  determin- 
ing and  partly  administrative,  such  as  the  governor  or 
mayor.  The  relation  of  chief  executives  to  legislative 
policy  and  their  position  as  party  leaders,  makes  them  to 
a  large  extent  policy  determining  officers,  although  they 
may  be  vested  with  large  administrative  powers. 

The  third  type  is  composed  of  the  technical  or  purely 
administrative  officers,  who  have  relatively  little  to  do 
with  the  determination  of  general  policies,  but  whose  main 
function  is  the  performance  of  administrative  duties,  the 
discharge  of  which  generally  requires  special  skill,  train- 
ing, or  experience.  Accountants,  chemists,  bookkeepers, 
commissioners,  health  officers,  comptrollers,  engineers, 
and  similar  officials  are  examples  of  this  type.  It  would 
seem  rather  obvious  that  the  application  of  the  recall  to 
a  member  of  the  legislature  might  be  more  appro- 
priate than  its  application  to  the  state  bacteriologist 
or  statistician.  Surely  the  conduct  of  the  former  is  much 
more  likely  to  come  within  the  range  of  possible  public 
opinion,  with  its  inherent  limitations,  than  the  official 
duties  of  the  latter.  For  that  reason  any  intelligent  dis- 
cussion of  the  problem  should  proceed  upon  the  basis  of 
some  such  classification  of  officers  as  is  here  suggested. 

So  far  nothing  has  been  said  about  the  position  of  the 
judge.  There  are  several  factors  here  that  make  his 
classification  exceedingly  difficult,  and  that  entitle  him  to 


THE  RECALL  OF  PUBLIC  OFFICERS          207 

special  consideration  in  the  discussion  of  the  recall.  To 
a  certain  extent  the  courts  are  policy  determining  officers. 
"Judges  in  the  United  States,"  declares  Professor  Beard, 
"unlike  the  judges  of  England  for  instance,  are  not  re- 
stricted merely  to  the  settlement  of  disputes  between  pri- 
vate parties;  they  are  policy-determining  officers,  because 
they  have  the  power  to  declare  null  and  void,  on  princi- 
ples of  constitutional  law  which  are  scarcely  more  than 
general  moral  precepts,  acts  passed  by  legislatures  and  by 
the  initiative  and  referendum.  During  the  period  of  seven 
years  from  1902  to  1908  the  supreme  courts  of  the  sev- 
eral states  declared  unconstitutional  about  five  hundred 
statutes.  The  theory  upon  which  they  act,  of  course,  is 
that  in  declaring  a  law  invalid  they  are  merely  interpret- 
ing the  higher  law  or  the  supreme  will  of  the  people  as 
expressed  in  the  state  or  federal  Constitution."1 

In  so  far  as  the  courts  have  occasion  to  interpret  such 
general  provisions  as  "due  process  of  law"  where  the 
indefiniteness  of  its  meaning  makes  it  impossible  to  con- 
fine judicial  action  within  boundaries*  definitely  fixed  by 
legal  logic  and  the  rule  of  precedent,  the  court  is  exer- 
cising policy  determining  functions,  but  within  much  more 
definite  limitations  than  those  that  prevail  in  the  exercise 
of  legislative  discretion.  For  there  are  precedents  and 
principles  for  their  guidance,  although  more  vague  and 
uncertain  than  in  many  other  fields  of  law,  and  the  limita- 
tions of  a  "sound  judicial  discretion"  in  which  there  is 
"an  intuition  of  experience  which  outruns  analysis  and 
sums  up  many  unnamed  and  tangled  impressions"  impose 
many  and  important  restraints  upon  judicial  action. 

There  is  yet  another  respect  in  which  a  court  has, 
within  very  narrow  limits,  a  policy  determining  function. 
When  matters  come  before  the  court  in  the  ordinary 


208  POPULAR  GOVERNMENT 

course  of  litigation,  which  demand  some  form  of  legal 
redress,  but  where  there  is  no  statute,  precedent,  or  cus- 
tom that  applies,  the  court  may  formulate  a  rule  for  the 
disposition  of  the  case,  thus  creating  a  new  principle  of 
law.  There  are,  however,  so  few  cases  of  this  character, 
that,  as  compared  with  the  other  functions  of  the  judici- 
ary, they  may  be  regarded  as  negligible.  On  the  other 
hand,  the  great  bulk  of  judicial  administration  is  con- 
cerned with  applying  the  principles  of  law  to  the  facts 
of  each  case  coming  before  the  court  for  decision,  which 
is  inherently  a  technical  task  and  which  involves  no  policy 
determining  power.  The  successful  performance  of  this 
task  requires  technical  legal  training  and  skill,  a  matter 
upon  which  a  popular  vote  would  be  as  impotent  as  it 
would  be  upon  some  problem  of  engineering  technique. 
In  the  great  majority  of  cases,  therefore,  the  courts 
should  be  classed  with  technical  officials. 

The  question  remains,  however,  whether  the  court 
should  be  treated  as  a  policy  determining  factor  in  re- 
gard to  decisions  upon  the  constitutional  validity  of  legis- 
lation, when  in  conflict  with  the  due  process  clause  and 
similar  provisions  of  the  constitution,  and  whether,  there- 
fore, the  court  should  be  subject  to  the  application  of  the 
recall.  This  raises  the  question,  discussed  in  previous 
chapters,  of  constitutional  restraints  and  judicial  review. 
If  the  doctrine  of  constitutional  restraints,  as  a  protec- 
tion to  the  rights  of  the  individual  and  a  safeguard 
against  the  hasty  and  passionate  action  of  the  majority, 
is  sound,  and  if  its  maintenance  is  dependent  upon  the 
existence  of  an  independent  judiciary,  the  application  of 
the  recall  of  judicial  officers  would  seem  unsound.  In 
fact,  the  argument  of  many  of  those  who  advocate  the 
extension  of  the  recall  to  the  courts  is  that  it  will  be  an 
effective  instrument  to  prevent  the  courts  from  exercising 


THE  RECALL  OF  PUBLIC  OFFICERS          209 

the  right  of  judicial  veto  upon  popular  or  legislative 
measures.  In  other  words,  if  the  people  of  a  state,  aroused 
by  the  passions  of  war,  desire  to  curtail  the  liberties  of 
speech  in  behalf  of  the  national  cause,  the  recall  would 
be  the  instrument  by  which  they  would  prevent  the  judici- 
ary from  safeguarding  the  constitutional  rights  thus  in- 
vaded, or  through  which  they  would  punish  the  court 
in  case  it  performed  its  legal  duties.  If  the  people  of  a 
state,  aroused  by  a  spirit  of  racial  hatred,  should  seek, 
through  the  forms  of  law,  as  they  frequently  have  done, 
to  deny  to  the  members  of  a  given  race  those  ordinary 
rights  of  liberty  and  property  which  are  decreed  by  the 
most  elemental  conception  of  justice  and  decency,  and  the 
court  should  seek  to  extend  to  the  despised  race  the  pro- 
tection guaranteed  by  the  fundamental  law,  the  recall 
would  be  the  instrument  by  which  the  people  could  find 
a  way  of  giving  to  their  tyranny  the  effectiveness  of  law. 
To  the  extent,  therefore,  that  the  people  would  use  the 
recall  to  prevent  courts  from  exercising  their  prerogative 
of  judicial  review,  it  would  tend  to  diminish  the  degree 
of  protection  to  the  individual  now  afforded  by  our  con- 
stitutional system.  It  would  not  abolish  it,  but  only  weaken 
its  effectiveness,  and  one's  judgment  as  to  its  wisdom  in 
this  particular  case,  would  be  determined,  therefore,  by 
the  degree  of  importance  one  attaches  to  the  preservation 
of  these  rights. 

We  come  now  to  the  consideration  of  the  efficiency  of 
public  opinion,  operating  directly  through  the  recall,  in 
determining  whether  or  not  the  particular  officer,  against 
whom  the  petition  has  been  filed,  should  be  recalled.  An 
officer  might  be  recalled  for  any  one  or  more  of  the  three 
following  reasons:  Corrupt  or  illegal  conduct,  misrepre- 
sentation of  his  constituents,  or  official  incompetence. 

It  will  be  admitted  that  if  an  officer  be  corrupt  or 


210  POPULAR  GOVERNMENT 

guilty  of  illegal  conduct,  he  should  be  removed.  Every 
one  would  agree  upon  that  as  a  matter  of  policy  and  a 
vote  on  that  issue  would  be  useless.  But  the  question 
would  remain  as  to  whether  or  not  the  officer  charged 
with  corruptness  or  illegal  conduct,  as  a  matter  of  fact 
and  law,  had  been  guilty.  There  is  nothing  more  difficult 
to  determine  than  the  corruption  of  official  motives.  Men 
who  would  be  corrupt  in  official  life  ordinarily  take 
every  possible  precaution  to  conceal  every  evidence  of 
their  crime.  Our  criminal  courts  and  our  prosecuting 
attorneys,  with  all  their  equipment  for  investigation  and 
sifting  of  evidence,  find  the  greatest  difficulty  in  deter- 
mining such  intricate  questions  of  fact.  On  the  other 
hand,  the  bitterness  of  partisan  strife,  and  the  ill  feelings 
frequently  and  necessarily  engendered  in  official  conduct 
which  disappoints  citizens  whose  interests  are  thereby 
affected,  make  it  quite  possible  that  charges  will  be  lightly 
made.  If  a  petition  is  filed  charging  corrupt  conduct 
against  an  officer,  under  this  circumstance,  the  truth  or 
falsity  of  the  charge  is  not  to  be  investigated  in  open 
court,  before  a  jury  sworn  to  decide  the  case  according 
to  the  law  and  evidence,  under  the  guidance  of  a  judge, 
and  where  witnesses  may  be  examined  and  cross-exam- 
ined, and  truth  sifted  out  from  error.  Instead  the  pro- 
posal is  to  leave  the  question  of  fact  thus  raised  to  the 
determination  of  a  public  vote,  in  which  it  will  be  de- 
termined by  people  who  know  nothing  of  the  evidence, 
most  of  whom  know  nothing  of  the  parties  that  are  in- 
volved, and  where  no  provision  is  made  for  a  sifting  of 
the  facts  and  a  careful  determination  of  the  issue.  It 
is  needless  to  say  that  in  such  a  case  there  can  not  possi- 
bly be  anything  that  even  remotely  resembles  public  opin- 
ion. For  no  fundamental  convictions  are  involved,  and 
the  average  voter  will  not  be  sufficiently  informed  upon 


THE  RECALL  OF  PUBLIC  OFFICERS          211 

the  facts  to  come  to  any  intelligent  decision.  This  means 
that  the  vote  will  be  determined  by  those  accidental  fac- 
tors which  sway  men's  judgment  when  they  have  no  basis 
for  a  rational  conclusion.  Those  who  control  the  press, 
or  who  can  secure  the  most  convincing  and  persuasive 
orators,  or  who  are  in  command  of  the  most  effective 
organization  of  the  voters,  will  have  great  influence  in 
the  decision  of  the  issue.  It  will  be  a  contest  determined 
by  the  accidents  of  politics,  rather  than  the  discovery  of 
the  truth. 

The  injustice  as  well  as  the  inefficiency  of  this  method 
of  deciding  the  difficult  problem  of  fact,  presented  by  a 
recall  election  which  turns  upon  alleged  corruption,  is 
forcefully  stated  by  Mr.  William  B.  Hornblower.  "When 
we  come  to  the  question  of  corruption,  the  injustice  of 
having  such  charges  passed  upon  by  popular  vote  after 
a  heated  campaign  with  violent  harangues  by  popular 
orators  without  any  legal  proof  of  the  charges  is  mani- 
fest. To  have  the  honesty  or  dishonesty  of  a  judge  deter- 
mined by  the  effect  of  stump  speeches  upon  the  platform, 
by  loose  declamations  and  unsworn  statements  of  inter- 
ested parties  without  any  opportunity  for  careful  exami- 
nation, is  to  subject  a  judge  to  an  indignity  and  a  possible 
injustice  which  may  blast  his  reputation  for  a  lifetime. 
How  often  have  we  heard  disgruntled  clients,  or  even 
indignant  lawyers,  complain  that  a  judge  has  been  bought 
or  improperly  influenced  to  render  adverse  decisions 
when  we  are  confident  that  such  charges  are  absolutely 
unfounded,  and  are  the  product  of  an  over-heated  imagi- 
nation resulting  from  the  bitterness  of  defeat  in  a  hard- 
fought  litigation."1 

On  the  other  hand,  Mr.  James  Manahan  is  equally 

1  "Independence   of    the   Judiciary   the    Safeguard   of    Free    Institu- 
tions," in  Yale  Law  Journal,  Vol.  XXII,  p.  1. 


212  POPULAR  GOVERNMENT 

sure  that  injustice  never  will  be  done.  "The  recall  never 
has  wronged  and  never  could  and  never  would  destroy  a 
just  judge;  it  is  the  shield  of  good  judges,  protecting 
them  from  the  importunity  of  special  and  corrupting 
influences  and  securing  them  in  the  affection  and  love  of 
the  people,  for  whose  general  welfare  they  should  labor; 
it  is  and  could  be  a  weapon  only  to  use  against  unfaithful 
judges  and  I  ask,  should  not  unfaithful  public  servants 
be  scourged  from  the  temple  of  justice  sternly  and  with 
promptitude  ?ni 

The  only  ground  upon  which  this  sweeping  assertion 
can  rest  are  the  timeworn  assumptions  of  the  omnipo- 
tence of  the  public,  and  that  the  people,  speaking  through 
the  recall  election,  will  unerringly  proclaim  the  truth,  re- 
gardless of  circumstances.  Obviously  no  method  will  al- 
ways secure  the  truth  in  determining  a  controverted  and 
difficult  question  of  fact.  Our  concern  here  is  to  determine 
whether  a  recall  election  is  the  most  efficient  means  avail- 
able for  the  determination  of  such  questions.  For  cen- 
turies civilization  has  struggled  with  this  important  prob- 
lem. What  method  of  determining  the  guilt  and  innocence 
of  those  accused  will  most  likely  produce  the  truth  and 
win  the  confidence  of  the  public?  The  unanimous  verdict 
of  experience  is  that  some  form  of  judicial  process  will 
give  the  best  results.  Then  we  may  well  inquire  of  the 
advocates  of  the  recall,  if  one  is  to  be  removed  because 
of  alleged  corruption,  why  not  make  the  determination 
of  that  fundamental  fact  according  to  the  best  methods 
civilization  has  been  able  to  mature,  rather  than  to  leave 
it  to  the  vagaries  of  a  popular  election.  For  it  is  incon- 
ceivable that  any  one  would  argue  that  in  the  determina- 
tion of  an  alleged  but  controverted  fact,  not  lying  within 
the  range  of  ordinary  observation  and  general  experience, 
1  "Recall  of  Judges,"  in  Minneapolis  Tribune,  Feb.  21,  1913. 


THE  RECALL  OF  PUBLIC  OFFICERS          213 

such  as  the  allegation  that  a  certain  legislator  had  re- 
ceived a  bribe  for  voting  on  a  particular  bill,  the  electo- 
rate would  be  an  able  and  efficient  judge. 

To  this  it  may  be  answered  that  the  recall  will  not  be 
used  to  determine  questions  of  fact.  This  seems  to  be 
the  impression  of  Mr.  H.  S.  Gilbertson,  who  observed 
that  "In  none  of  the  cases  in  which  it  has  been  invoked 
does  there  appear  to  have  been  any  effort  to  bring  to  light 
the  definite  evidence  of  malfeasance  under  the  statutory 
definitions,  which  would  support  legal  indictment.  If 
such  evidence  existed  in  the  mayoralty  cases  in  Los  An- 
geles and  Seattle,  no  effort  was  made  to  formulate  it.  And 
in  all  the  others  the  action  for  removal  was  put  entirely 
upon  grounds  of  public  expediency."1 

On  the  other  hand,  the  advocates  of  the  recall  arc 
continually  urging  it  as  a  means  of  removing  officers  be- 
cause of  their  corrupt  and  illegal  acts.  Moreover,  Profes- 
sor James  D.  Barnett,  writing  in  1915,  gave  a  survey  of 
the  seventeen  recall  elections  that  had  then  been  held  in 
Oregon,  and  it  appears  that  in  at  least  six  out  of  the 
seventeen,  the  petitions  alleged  fraud,  corruption,  or 
some  other  illegal  act,  the  proper  termination  of  which 
would  have  involved  a  delicate  question  of  fact  or  of  fact 
and  law.2 

It  may  be  argued  that  since  one  can  not  be  recalled 
without  a  petition  bearing  a  large  percentage  of  names, 
that  this  petition  affords  a  sufficient  guarantee  against 
charges  of  corruption  unless  there  is  real  evidence  of  the 
truth  of  the  assertion.  But  the  evidence  is  that  many  per- 
sons sign  the  petitions  in  utter  ignorance  of  their  contents 
and  without  interest  in  the  results.  Professor  Barnett  re- 

1  "Recall — Its  Provisions  and  Significance,"  in  Annals  of  the  Amer- 
ican Academy,  Vol.  X  LI  1 1,  p.  216. 

J  The  Operation  of  the  Initiative,  Referendum  and  Recall  in  Oregon, 
pp.  191-201. 


214  POPULAR  GOVERNMENT 

ports  that  "Although  it  is  probably  true  that  people  do 
not  sign  recall  petitions  thrust  before  them  on  the  streets 
and  elsewhere  as  readily  as  they  do  other  kinds  of  peti- 
tions, nevertheless  under  the  present  system  there  is  great 
probability  that  accommodating  persons  will  by  their 
signatures  aid  a  movement  for  the  merits  of  which  they 
care  absolutely  nothing."1  Nor  is  there  any  reason  for 
thinking  that  merely  because  one  knowingly  signs  such 
a  petition  he  has  made  such  a  careful  investigation 
of  all  the  facts  and  evidence  that  he  would  be  justified 
in  certifying  to  the  accuracy  of  the  allegations  made.  In 
fact,  the  general  theory  seems  to  be,  not  that  the  signer 
of  the  petition  knows  it  to  contain  the  truth,  but  merely 
that  he  has  a  suspicion  or  doubt  which  he  thinks  ought 
to  be  submitted  to  a  trial  of  votes. 

Perhaps  one  of  the  most  significant  matters  in  connec- 
tion with  the  petitions  is  the  fact  that  very  commonly 
they  do  not  state  the  real  motives  of  those  who  have 
furnished  the  money  and  the  energy  to  secure  the  peti- 
tion and  to  make  the  fight  against  the  officer.  In  Profes- 
sor Barnett's  survey  of  the  seventeen  recall  elections  in 
Oregon,  above  referred  to,  he  finds  that  in  a  majority  of 
the  cases  there  were  other  motives  than  those  alleged  in 
the  petition,  and  that  in  some  cases  these  ulterior  motives 
were  the  dominant  ones.  Where  people  with  sufficient 
funds,  influence,  or  energy,  were  motivated  by  spite  or 
other  ignoble  feeling  against  an  official,  which  they  dared 
not  assign  in  their  petition,  they  assigned  plausible  mo- 
tives for  their  action  in  the  petition,  and  fought  the  officer 
behind  a  smoke  screen  of  misrepresentation.  The  obvious 
unfairness  and  injustice  of  these  methods  needs  no  dis- 
cussion. While  this  did  not  always  happen,  it  was  common 
enough  to  be  regarded  as  one  of  the  ordinary  abuses. 

1  "Operation  of  the  Recall  in  Oregon,"  in  American  Political  Science 
Review,  Vol.  VI,  pp.  41. 


THE  RECALL  OF  PUBLIC  OFFICERS          215 

Professor  Barnett  gives  a  condensed  account  of  some  of 
these  cases  which  deserves  serious  attention.  "Neither  in 
the  cases  in  which  the  officers  were  recalled  nor  in  that 
in  which  the  officer  was  sustained  in  the  election  do  the 
reasons  for  the  demand  as  stated  in  the  recall  petitions 
disclose  all  the  motives  nor  always  the  chief  motive  for 
the  demand.  In  one  case  where  it  was  charged  in  the 
petition  that  the  officer  was  inefficient,  immoral,  untruth- 
ful, and  arbitrary  in  the  exercise  of  his  authority,  a  mo- 
tive which  was  influential  at  least  to  some  extent  was  the 
hostility  of  certain  property  owners  caused  by  the  officer's 
action  in  opening  streets  which  they  had  illegally  closed. 
In  one  of  the  bitterest  campaigns  the  petition  asserted 
that  the  officials  had  managed  the  affairs  of  the  city  in 
an  unsatisfactory  manner,  illegally  diverted  public  funds, 
repudiated  the  city  debt,  etc.  But  the  real  cause  of  the 
recall  movement  was  simply  a  factional  fight  waged  by 
two  banks  and  their  respective  supporters  which  had 
divided  the  city  against  itself  ever  since  the  second  bank 
was  organized,  and  which  ceased  later  only  with  the 
merger  of  the  two  banks.  When  the  petition  charged  a 
mayor  with  incompetency,  improper  expenditure  for 
street  improvements,  unwarranted  removal  of  a  city 
employee,  and  favoritism  in  committee  appointments,  the 
real  ground  of  the  agitation  seems  to  have  been  opposi- 
tion to  his  progressive  policy  in  regard  to  public  improve- 
ments. Where  the  petition  stated  simply  that  a  council- 
man did  not  'faithfully  and  efficiently  represent'  the 
interests  of  his  ward  and  city,  the  motives  behind  the  re- 
call were  various.  The  officer  had  been  inconsiderate  in 
dealing  with  some  of  his  constituents  who  desired  his 
influence  in  securing  certain  action  by  the  council.  He 
had  fathered  an  ordinance  deemed  by  the  labor  unions 
prejudicial  to  their  interests,  and  he  was  opposed  by  their 


216  POPULAR  GOVERNMENT 

adherents  on  this  account.  Their  candidate  won  in  the 
recall  election.  Further,  the  councilman  had  advocated 
the  location  of  a  sewer  outlet  in  a  certain  locality  and 
had  thus  aroused  the  opposition  of  some  property  own- 
ers. One  of  these  was  a  candidate  at  the  recall  election. 
The  councilman  had  also  incurred  the  enmity  of  a  corpo- 
ration attorney  by  charging  the  latter  with  an  attempt  to 
bribe  him  to  drop  some  legislation  detrimental  to  the 
interests  of  the  company.  The  attorney  was  very  active 
against  the  officer  in  the  recall  campaign.  It  was  also 
claimed  that  several  corporations  which  had  suffered 
from  legislation  originating  with  this  officer  were  partly 
responsible  for  his  defeat.  In  another  case  where  unsatis- 
factory administration,  diversion  of  public  funds,  need- 
less expenditures,  abuse  of  the  emergency  clause  in  the 
enactment  of  ordinances,  impairment  of  the  public  credit, 
etc.,  were  alleged  in  the  petition  as  the  reasons  for  de- 
manding the  recall,  the  movement  was  really  the  outcome 
of  struggle  between  those  who  opposed  and  those  who 
favored  the  stringent  enforcement  of  the  prohibition 
law.  The  officers  attacked  represented  the  temperance' 
ticket  which  had  won  at  the  previous  election. 

"It  appears  that  some  of  the  charges  stated  in  the 
petitions  in  these  cases  could  be  substantiated  but  that 
others  could  not.  On  the  whole,  it  seems  that  the  recall 
action  was  not  justified  in  more  than  one  or  two  of  these 
cases.  However,  it  is  going  too  far  to  conclude,  as  has 
been  maintained  here  to  some  extent,  that  this  experi- 
ence with  the  recall  has  shown  it  to  be  merely  an  instru- 
ment of  personal  or  factional  spite."1 

Whatever  may  be  said  for  the  recall  in  some  of  its 
other  uses,  there  seems  no  reason  to  regard  it  as  a  par- 
ticularly effective  instrument  for  the  determination  of  the 


THE  RECALL  OF  PUBLIC  OFFICERS          217 

guilt  or  innocence  of  an  officer  accused  in  the  petition 
of  corrupt  or  illegal  conduct,  since  there  is  no  ground 
whatsoever,  to  suppose  that  there  will  be  any  reasonable 
relation  between  the  popular  verdict  and  the  guilt  or 
innocence  of  the  man.  Clearly  some  form  of  judicial 
process  would  be  infinitely  more  reliable  in  the  just  and 
accurate  solution  of  this  type  of  problem.  In  view  of 
these  facts  the  following  indictment,  by  Mr.  James  A, 
Tawney,  against  the  use  of  the  recall  as  a  means  of  re- 
moving officers  for  alleged  corruption,  does  not  seem 
overdrawn.  "Under  this  system,  it  will  be  seen,  there- 
fore, that  the  misguided  or  malignant  passions  of  an 
unimportant  part  of  the  community  may  accuse  the  most 
efficient  elective  officer,  and  by  the  use  of  groundless 
charges  or  published  misrepresentations,  create  suspi- 
cion and  distrust  where  formerly  public  confidence  and 
faith  existed;  thus  depriving  the  state  of  the  services  of 
an  efficient  and  an  upright  executive  officer  or  stainless 
judge.  The  recall  is  in  the  nature  of  a  public  indictment, 
returned,  not  upon  evidence,  but  upon  the  will  or  the 
caprice  of  those  who  frame  and  sign  it,  charging  no 
offense  moral  or  legal;  presented  to  a  court  that  is  bound 
by  no  rules  except  the  rule  of  the  majority;  where  the 
defendant  is  denied  all  presumptions  in  his  favor  and 
where  he  cannot  answer  any  specific  charge,  for  no  spe- 
cific charge  is  necessary  to  secure  his  conviction.'*1 

The  efficiency  of  the  recall  as  an  instrument  of  remov- 
ing those  officers  who  fail  to  represent  their  constituents, 
presents  a  different  question.  In  so  far  as  technical  offi- 
cers are  concerned,  there  is  generally  supposed  to  be  little 
occasion  for  the  exercise  of  popular  control  for  this  pur- 
pose, since  such  officers  are  not  in  control  of  policies  and 
can  hardly  be  said  to  misrepresent  their  constituents, 
1  Edith  M.  Phelps,  Selected  Articles  on  the  Recall  pp.  46-47. 


218  POPULAR  GOVERNMENT 

unless  they  are  either  incompetent  or  corrupt,  which 
raises  an  entirely  different  set  of  questions.  For  example, 
a  state  statistician  could  hardly  be  guilty  of  misrepre- 
senting his  constituents,  so  long  as  he  was  competent  and 
honest.  There  are  no  Democratic,  or  Republican,  or 
Socialist  policies  involved  in  his  technical  duties.  The 
same  is  true  of  the  state  bacteriologist,  engineer,  geol- 
ogist, comptroller,  and  the  various  other  officers  whose 
duties  are  essentially  technical  and  administrative.  While 
it  is  true  that  the  recall  does  not  frequently  extend  to 
other  than  elective  offices,  it  is  done  occasionally,  and  in 
practically  every  state  and  city  there  are  some  techni- 
cal officers  that  are  popularly  elected.  It  would  seem, 
therefore,  that  a  discriminating  and  intelligent  use  of 
the  recall  would  have  to  be  restricted  to  political  officers, 
unless  one  be  of  the  opinion  that  it  is  also  useful  as  a 
means  of  applying  standards  of  technical  efficiency,  a 
suggestion  that  will  be  discussed  later. 

As  applied  to  political  or  quasi-political  officers,  the 
recall  election  should  afford,  in  a  small  number  of  cases, 
a  reasonably  satisfactory  method  of  removing  those  who 
fail  to  represent  the  opinion  of  the  public.  If  the  mayor, 
for  instance,  declines  to  enforce  the  law  and  runs  a  "wide 
open  town,"  a  recall  election  based  upon  that  allegation 
should  register  accurately  the  public  opinion  of  the  com- 
munity. And  such  an  issue  is  one  upon  which  a  public 
opinion  would  very  probably  exist.  If  a  member  of  the 
legislature  is  too  conservative,  or  too  wet,  or  too  radi- 
cal, a  recall  election  on  such  an  issue  presents  an  oppor- 
tunity for  the  public  opinion  of  the  community  to  express 
itself.  These  are  obviously  the  most  simple  questions 
that  could  arise,  and  are,  therefore,  the  best  illustrations 
to  demonstrate  the  strong  points  of  the  system.  For  it  is 
equally  apparent  that  many  issues  could  come  up,  in- 


THE  RECALL  OF  PUBLIC  OFFICERS          219 

volving  the  political  action  of  these  officers,  which  would 
present  technical  questions  of  policy,  upon  which  public 
opinion  could  not  pass  directly,  but  where  it  could  func- 
tion intelligently  only  after  the  law  had  been  in  operation 
long  enough  to  show  by  its  results  whether  it  secured  the 
objects  in  which  the  constituents  are  interested.  But 
this  will  be  discussed  later.  Enough  has  been  said,  how- 
ever, to  show  that  even  here  the  recall  is  not  an  unmixed 
blessing. 

The  strongest  argument  for  the  recall,  therefore,  does 
not  seem  to  lie  in  its  inherent  efficiency,  but  rather  in 
the  opportunity  that  it  will  afford  to  lengthen  the  term 
of  office,  thus  securing  to  the  public  the  benefits  of  official 
experience  and  training  that  comes  only  with  longer  terms 
of  service.  For  it  will  probably  be  very  unlikely  that  the 
people  will  greatly  extend  the  official  terms  of  political 
officers,  unless  the  extension  is  accompanied  by  the  recall. 
"That  longer  terms  of  office  and  a  freer  range  of  dis- 
cretion are  conducive  to  administrative  efficiency  is  every- 
where accepted,"  writes  Professor  Beard,  uand  the  recall 
seems  to  offer  to  democracy  the  proper  safeguards  against 
the  usurpation  which  will  warrant  the  granting  of  longer 
terms  and  larger  powers  to  executive  authorities." 

But  even  this  beneficent  result  can  be  attained  only 
when  some  of  the  present  problems  of  the  recall  have 
been  more  nearly  solved.  There  must  be  new  safeguards 
regarding  the  use  of  the  petition  and  some  form  of  legal 
responsibility  attached  to  those  responsible  for  the  good 
faith  of  the  allegations  that  it  contains.  It  is  intolerable 
that  it  should  be  employed  as  an  instrument  of  personal 
or  political  spite,  and  that  the  petition  should  allege 
one  thing  while  the  secret  efforts  of  organized  forces  are 
waging  their  fight  on  a  totally  different  issue.  Whether 
not  these  abuses  can  be  adequately  dealt  with,  time 


.. 


220  POPULAR  GOVERNMENT 

alone  will  tell,  but  until  they  are,  the  wisdom  of  the 
device,  even  for  the  reasons  here  suggested,  will  be 
doubtful. 

There  is  one  other  aspect  of  this  situation  that  re- 
quires discussion.  Even  though  it  be  granted  that  the 
recall  will  accurately  determine  whether  or  not  any  par- 
ticular officer  is  truly  representing  the  opinion  of  his  con- 
stituents, there  are  those  who  think  that  it  would  be  much 
wiser  not  to  allow  the  public  to  voice  its  opinion  at  any 
particular  moment  when  it  may  feel  disposed,  but  only 
at  stated  periods  and  after  enough  time  has  elapsed  so 
that  the  opinion  will  be  the  mature  opinion,  resulting 
from  a  long  period  of  deliberation,  and  not  the  snap 
judgment  of  the  moment,  induced,  perhaps,  by  some  un- 
usual stress  or  excitement.  For  this  reason  it  is  argued 
that  regular  elections,  occurring  at  stated  periods,  pro- 
vides conditions  that  tend  to  secure  an  expression  of 
opinion  that  in  the  long  run  will  be  most  reliable  and 
sound.  Under  such  a  system,  the  people  may  have  to 
endure  officers  for  a  time  that  they  do  not  like,  but  it 
is  argued  that  such  a  disadvantage  will  be  more  than 
offset  by  the  other  considerations  just  mentioned. 

For  instance  it  is  argued,  that  at  the  time  Washington 
resisted  the  popular  clamor  to  form  an  alliance  with 
France,  he  would  have  been  recalled,  had  it  been 
possible,  but  that  by  the  time  the  people  had  had  an 
opportunity  to  think  it  over  and  mature  their  opinions, 
they  were  convinced  of  the  statesmanship  of  the  policy. 
Governor  Samuel  W.  McCall  thinks  the  same  situation 
existed  in  regard  to  Lincoln.  "The  disastrous  defeats  that 
the  Union  arms  had  suffered  had  been  relieved  only  by 
slight  successes.  Lincoln  scarcely  had  a  friend  even  in  his 
own  Cabinet.  Seward  was  willing  to  take  him  under  guard- 
ianship and  run  the  country  for  him;  Stanton  had  written 


THE  RECALL  OF  PUBLIC  OFFICERS          221 

of  the  'imbecility'  of  the  administration;  Chase  was  quite 
ready  to  be  a  candidate  for  the  Presidency  himself;  the 
abolitionists  were  unsparing  in  their  criticism;  the  great 
organs  of  public  opinion  were  hostile  to  him;  and  there 
can  be  little  doubt  that,  if  a  proceeding  for  Recall  could 
have  been  had  against  him  at  the  moment  when  he  was 
enveloped  in  the  clouds  of  unpopularity,  the  career  of 
the  greatest  of  Americans  would  have  been  brought  to 
a  disgraceful  ending,  with  results  to  civilization  which 
it  is  melancholy  to  contemplate. m 

This  theory  has  been  very  excellently  stated  by  Presi- 
dent Hadley  in  the  following  paragraphs:  uThe  work 
of  governing  a  commonwealth — nation,  state,  or  city — 
is  a  complicated  and  difficult  piece  of  business.  It  never 
goes  wholly  right.  The  statesman  must  sacrifice  some 
things  which  he  regards  as  highly  desirable  in  order  to 
secure  other  things  which  he  deems  fundamentally  essen- 
tial. He  alone  knows  how  necessary  the  sacrifice  is  and 
how  much  he  himself  regrets  it.  The  man  who  looks  on 
from  outside  thinks  that  the  statesman  is  doing  it  lightly. 
Such  a  man  sees  the  loss  to  the  shipper  from  allowing 
an  increased  railroad  rate.  He  does  not  see  that  he 
must  let  the  railroad  charge  that  rate  in  order  to  secure 
the  necessary  development  of  the  transportation  system 
of  the  community.  He  sees  the  loss  from  having  Ameri- 
can vessels  pay  tolls  in  the  Panama  Canal.  He  does  not 
see  the  gain  in  foreign  relations  due  to  the  adoption  of 
an  honorable  policy.  A  journalist  is  tempted  to  make 
himself  popular  by  voicing  the  complaints  of  his  readers. 
By  advocating  a  short-sighted  policy  which  works  for 
today  only,  he  can  make  a  profit  for  himself;  and  few 
of  those  who  buy  his  paper,  foresee  the  loss  that  comes 

1  "Representative    as    Against    Direct     Government,"     in    Atlantic 
onthly,  Vol.  108,  p.  454. 


Monthly,  V 


222  POPULAR  GOVERNMENT 

to  the  country  if  his  advice  is  followed,  or  put  the  blame 
on  his  shoulders  after  it  has  come. 

"This  sort  of  captious  criticism  is  one  of  the  incidental 
evils  which  has  attended  government  by  discussion  in 
all  ages  and  in  every  state.  'Armies/  says  Macaulay, 
'have  won  victories  under  bad  generals,  but  no  army  ever 
won  a  victory  under  a  debating  society.'  Once  let  the 
officials  of  a  democracy  be  placed  at  the  mercy  of  a  purely 
critical  press,  and  the  efficiency  of  American  democracy 
• — not  to  say  American  democracy  itself — is  at  an  end. 
It  is  this  that  makes  the  proposed  institution  of  the  recall 
so  perilous.  The  recall  is  based  on  the  theory  that  people 
should  be  encouraged  to  judge  of  a  man's  work  when  it 
is  half  done.  On  terms  like  these  efficient  and  farsighted 
administration  is  impossible.  The  recall  may  seem  to  be 
justified  in  a  few  cases  where  an  official  has  palpably 
betrayed  his  trust  without  quite  rendering  himself  liable 
to  impeachment,  but  for  one  case  of  that  kind  where  it 
does  good  there  are  likely  to  be  a  dozen  cases  where  it 
will  prevent  an  official  from  assuming  the  sacrifices  and 
incurring  the  odium  which  any  farsighted  plan  of  govern- 
ment is  apt  to  involve  before  its  results  are  understood. 

"Most  of  the  public  discussion  of  the  recall  has  cen- 
tered about  the  recall  of  judges.  We  are  told  that  the 
judicial  office  is  something  apart  by  itself,  and  that  there 
are  special  dangers  which  make  the  recall  inapplicable 
in  this  particular  instance.  I  believe  that  this  distinction 
between  the  recall  of  judges  and  the  recall  of  other  offi- 
cials is  an  essentially  false  one;  that  every  official  should 
be  allowed  to  serve  out  his  term,  except  in  case  of  mis- 
conduct or  incapacity;  and  that  the  nation  which  claims 
the  right  to  change  its  mind  as  to  the  fitness  of  an  official 
during  the  middle  of  his  term  is  proving  its  incapacity  for 
democratic  government.  It  is  either  unwilling  to  take 


THE  RECALL  OF  PUBLIC  OFFICERS          223 

the  proper  care  in  the  selection  of  officials  or  unable  to 
have  patience  until  the  allotted  work  is  done  before 
passing  judgment  on  its  merits/'1 

It  is  this  consideration  that  is  generally  urged  in  reply 
to  the  argument  that  if  the  people  can  elect,  they  can 
likewise  remove.  Undoubtedly  any  officer  that  it  is  wise 
for  the  people  to  elect,  it  may  be  equally  wise  for  them 
to  remove,  but  the  advocates  of  this  theory  would  limit 
the  opportunities  for  removal  to  periodic,  stipulated 
occasions  in  order  that  the  vote  might  be  as  mature  and 
deliberate  as  circumstances  would  permit.  They  argue 
that  the  best  results  will  be  secured  by  giving  to  the  offi- 
cer a  term  of  office  long  enough  to  afford  him  an  oppor- 
tunity to  show  what  he  can  do,  and  long  enough  to  give 
the  people  a  real  opportunity  to  judge  of  his  usefulness. 
This  can  only  be  done  by  a  fixed  term  of  office,  while 
with  the  recall,  an  officer  may  be  subjected  to  a  recall 
election  before  the  people  have  had  adequate  oppor- 
tunity to  form  a  mature  and  deliberate  judgment  regard- 
ing the  officer  that  is  recalled. 

The  success  of  the  recall,  as  a  means  of  determining 
the  efficiency  of  officers,  now  remains  to  be  considered. 
If  an  officer  is  inefficient,  there  is  no  doubt  that  he  should 
forfeit  his  office.  This  will  be  admitted  on  every  hand. 
Therefore  the  only  thing  to  consider  is  whether  the  recall 
election  affords  a  rational  and  effective  means  of  deter- 
mining whether  or  not  an  officer  is  efficient. 

Unfortunately  for  the  interests  of  clear  thinking,  most 
of  the  discussion  regarding  the  merits  of  the  recall  has 
not  proceeded  upon  this  basis.  It  has  generally  been 
discussed  in  terms  of  democracy  and  of  the  rights  of 
the  public,  rather  than  in  terms  of  its  peculiar  adapta- 
bility to  the  specific  tasks  at  hand.  It  has  been  glibly 
^Undercurrents  in  American  Politics,  pp.  167-170. 


224  POPULAR  GOVERNMENT 

compared  with  the  right  of  the  employer  to  discharge 
his  employee,  and  from  this  sweeping  generalization,  its 
compliance  with  sound  business  principles  has  been  elo- 
quently implied.  Mr.  Jonathan  Bourne  naively  observed 
that  the  "Adoption  of  the  recall  is  nothing  more  than  the 
application  of  good  business  principles  to  government 
affairs.  Every  wise  employer  reserved  the  right  to  dis- 
charge an  employee  whenever  the  service  rendered  is 
unsatisfactory.  The  right  of  the  employer  to  discharge 
his  employee  rests  upon  exactly  the  same  basis  as  the 
right  of  the  employee  to  quit.  The  principle  is  recog- 
nized throughout  the  business  world,  and  it  is  put  in 
practice  by  every  large  and  successful  corporation."1 

This  astounding  comparison  deserves  some  consider- 
ation because  it  is  so  typical  of  those  defending  the  recall. 
Of  course  it  is  the  practice  of  modern  business  to  provide 
for  the  discharge  of  inefficient  employees,  and  it  is  equally 
clear  that  the  public  may  very  properly  claim  the  same 
right  in  regard  to  public  employment.  Upon  this  there 
can  be  no  debate.  But  what  is  the  best  way  for  the  public 
to  exercise  that  right?  The  implication  is  that  they  should 
do  it  much  the  same  as  it  is  done  in  modern  business, 
and  the  further  implication  is  that  the  recall  provides 
that  way.  Now  let  us  make  a  critical  analysis  of  the  com- 
parison. When  a  great  corporation  desires  to  remove 
an  employee  because  of  his  inefficiency,  they  do  not  wait 
for  some  stockholder  to  take  the  initiative  and  circulate 
a  petition  for  the  recall  of  that  official,  and  then  subject 
the  question  of  the  official's  efficiency  to  a  vote  of  all  the 
stockholders.  Such  a  proceeding  would  be  grotesque 
and  ridiculous,  and  for  the  very  simple  and  obvious  rea- 
son that  the  stockholders  would  know  nothing  of  the 

1  "Functions  of  the  Initiative,  Referendum  and  Recall,"  in  Annals  of 
the  Am.  Acad.,  Vol.  XLIII,  p.  3. 


THE  RECALL  OF  PUBLIC  OFFICERS          225 

merits  of  the  controversy  thus  submitted  for  their  de- 
termination.   Yet  one  might  argue  with  a  great  show  of 
moral   indignation    that   the   business   belonged    to    the 
stockholders,  that  they  had  a  right  to  run  it,  and  that 
they  were  justified  in  protecting  themselves  against  the 
evils  of  inefficient  officers.   This  would  not  dispose  of  the 
fundamental  question,  however,  as  to  whether  that  was 
the  proper  way  to  do  it.    In  business  every  one  knows 
that  it  is  not.   No  one  has  ever  suggested  it.  And  yet  one 
may  safely  assume  that  the  average  stockholder  is  as 
intelligent  about  the  business  in  which  his  money  is  in- 
vested as  he  is  in  the  government  under  which  he  lives. 
Moreover,  he  is  probably  just  as  interested  in  the  efficient 
management  of  his  business  as  he  is  in  the  efficient  con- 
duct of  his  government.    Perhaps  this  is  not  as  it  should 
be,  but  it  would  take  a  blind  optimist  to  assert  the  con- 
trary.   If  the  stockholders  of  a  corporation  have  neither 
the  interest  nor  information  to  make   a  discriminating 
and  intelligent  determination  regarding  the  efficiency  of 
their  corporate  officers  and  employees,  then  upon  what 
basis  is  it  argued  that  the  voters  of  a  republic  will  do 
better? 

As  a  matter  of  fact  the  experience  of  business  has 
shown  that  the  wisest  methods  of  procedure,  in  corpo- 
rate undertakings,  are  just  the  opposite  of  the  recall  and 
the  other  instruments  of  direct  democracy.  The  stock- 
holders delegate  all  the  powers  of  management,  within 
the  limits  fixed  by  the  articles  of  incorporation  and  the 
laws  of  the  state,  to  a  board  of  directors  whom  they 
elect.  This  board  of  directors  generally  elect  the  few 
chief  officers  of  the  corporation,  and  vests  them  with  the 
complete  authority  over  all  questions  of  "hiring  and 
firing/'  holding  the  officers  accountable  for  the  results 
achieved.  This  is  analagous  to  the  principle  of  the  short 


226  POPULAR  GOVERNMENT 

ballot  as  it  is  embodied  in  the  federal  government,  where 
the  people  elect  the  President,  who  in  turn  appoints  the 
cabinet,  and  leaves  to  the  members  of  the  latter  the  great 
task  of  appointing  and  removing  subordinate  officials, 
holding  them  answerable  only  for  results.  The  theory 
here  is  very  simple  and  is  obvious  common  sense.  The 
managers  and  departmental  heads  are  the  ones  most 
closely  in  touch  with  the  work  of  their  departments  and 
the  efficiency  of  the  various  officers  and  employees,  and 
they  are,  therefore,  the  ones  most  competent  to  pass  an 
accurate  judgment  upon  the  efficiency  of  each  employee 
and  to  know  whether  another  can  be  secured  who  can  do 
better.  The  trained  executive  is  an  expert  in  judging  men 
and  in  measuring  the  services  that  they  render.  More 
than  that,  it  is  his  business  to  know  where  the  best  men 
for  the  different  tasks  are  obtainable,  and  the  most  effec- 
tive methods  of  employment.  Much  scientific  work  has 
recently  been  done  in  the  study  and  perfection  of  employ- 
ment methods,  and  the  only  way  the  public  can  take 
advantage  of  this  is  to  adopt  the  principles  embodied 
in  private  business  and  in  the  federal  government,  and 
vest  the  power  of  "hiring  and  firing"  in  responsible  offi- 
cers with  full  authority,  and  then  to  hold  them  to  strict 
accountability  for  the  services  they  render. 

Because  of  certain  obvious  differences  between  public 
and  private  business,  one  cannot  press  the  analogies  of 
private  business  too  far.  So  far  as  private  business  has 
developed  sound  principles  of  administration,  however, 
and  correlated  them  with  the  necessity  for  responsibility 
to  the  body  of  stockholders,  the  analogy  is  not  without 
great  value.  And  to  just  this  extent  the  experience  of 
the  business  world,  instead  of  affording  evidence  in  favor 
of  the  recall  as  a  sound  principle  of  corporate  organiza- 
tion, as  is  so  frequently  contended,  affords  the  most  con- 


THE  RECALL  OF  PUBLIC  OFFICERS          227 

elusive  evidence  that  we  have  against  the  value  of  the 
recall  election  as  the  most  accurate  method  of  determin- 
ing the  efficiency  of  employees. 

Let  us  now  analyze  the  specific  problems  that  are  in- 
volved. In  applying  the  recall  to  technical  officers,  we 
have  the  problem  of  formulating  the  technical  standards 
that  should  prevail,  and  the  still  more  difficult  and  tech- 
nical task  of  applying  those  standards  to  all  the  facts 
of  the  particular  case.  Suppose,  for  example,  that  criti- 
cism is  made  of  the  state  bacteriologist,  and  a  demand 
formulated  for  his  removal.  This  will  involve  a  deter- 
mination of  some  reasonable  standard  of  scientific  effi- 
ciency in  the  field  of  bacteriology,  the  application  of  that 
standard  to  the  training,  conduct,  and  services  of  the 
particular  officer,  and  an  intelligent  judgment  as  to 
whether  another  bacteriologist  can  be  secured  who  will 
give  a  higher  standard  of  technical  service.  The  simple 
statement  of  the  problem  involved  is  enough  to  demon- 
strate conclusively  the  utter  impossibility  of  supposing 
that,  upon  such  a  group  of  questions,  a  public  opinion 
could  possibly  exist.  It  is  likewise  with  the  courts.  Most 
of  the  business  of  the  courts  is  the  analysis  of  the  facts 
of  the  various  controversies  coming  before  the  courts  for 
adjudication,  the  determination  of  the  principles  of  law 
that  are  involved,  and  the  application  of  the  rules  of  law 
to  the  particular  situation.  This  involves  a  technical 
knowledge  of  the  law  and  a  mastery  of  the  processes  of 
legal  reasoning.  If  a  judge  is  to  be  removed  because  of 
his  alleged  inefficiency,  the  removal  power  must  be  vested 
in  some  agency  in  a  position  to  judge  accurately  as  to  the 
court's  knowledge  of  law,  and  the  scientific  precision  and 
accuracy  with  which  it  was  applied  in  the  given  case. 
Here  it  is  equally  obvious  that  a  public  opinion  could 
not  exist,  and  therefore  that  a  recall  election  as  a  means 


228  POPULAR  GOVERNMENT 

of  determining  official  inefficiency  would  be  impotent,  for 
as  so  frequently  observed  the  mere  counting  of  hands 
determines  nothing  unless  it  faithfully  represents  or 
articulates  a  real  public  opinion. 

An  attempt  to  subject  Judge  Coke,  a  district  judge  in 
Oregon,  to  a  recall  election,  because  it  was  alleged  that 
he  had  given  instructions  in  a  sensational  murder  trial 
which  improperly  favored  the  defendant,  illustrates  the 
futility  as  well  as  the  danger  of  trying  to  use  the  recall 
to  determine  matters  of  official  efficiency.  The  following 
comments  upon  the  situation  thus  produced,  coming  from 
a  strong  advocate  of  the  recall,  are  particularly  signifi- 
cant. "In  reality  it  is  not  Judge  Coke  that  the  good  peo- 
ple of  Roseburg  are  after.  Their  real  fury  is  against 
McClallen,  but  for  the  moment  it  is  Judge  Coke  that  is 
in  sight.  The  public  sympathizes  with  them  in  their  in- 
dignation. McClallen  shot  down  a  highly  esteemed  citi- 
zen. He  escaped  punishment.  The  indignation  of  the 
Roseburg  people  is  a  natural  sequence.  But  it  was  not 
Judge  Coke  that  pulled  the  trigger  of  the  murderous 
revolver.  McClallen  did  that.  It  was  not  Judge  Coke 
that  fixed  the  requirements  of  the  jury  instructions  at 
the  trial.  It  was  the  law  of  the  land  that  did  that.  Parts 
of  the  very  instructions  used  were  the  dictum  of  the 
Oregon  supreme  court  in  the  Morey  case.  On  sober  sec- 
ond thought,  the  Roseburg  people  must  realize  that  fury 
is  being  visited  on  the  wrong  man.  It  was  McClallen 
that  killed  a  citizen.  In  a  Portland  case  where  the  in- 
structions on  vital  points  were  the  same  as  Judge  Coke's 
the  jury  convicted.  Had  the  two  cases  been  tried  con- 
temporaneously, would  the  friends  in  one  instance  have 
used  the  recall  because  one  court  convicted  and  used  it 
in  the  other  because  there  was  an  acquittal  ?  *  *  *  Under 
the  recall,  the  people  would  place  Judge  Coke  on  trial. 


THE  RECALL  OF  PUBLIC  OFFICERS          229 

They  would  also  have  to  try  the  McClallen  case  in  full. 
They  would  have  to  know  all  the  facts  in  detail  to  pass 
an  intelligent  opinion.  They  would  have  to  have  the 
law  points  explained.  They  would  have  to  hear  the  in- 
structions. They  would  have  to  study  the  decisions  and 
precedents.  They  would  also  have  to  try  the  supreme 
court  of  Oregon,  for  the  supreme  court,  in  the  Morey 
case,  affirmed,  in  effect,  the  vital  instructions  given  by 
Judge  Coke.  They  would  have  to  pass  on  the  question 
of  whether  the  supreme  court  was  right  or  wrong.  In 
short,  they  would  have  to  supersede  the  supreme  court 
and  perform  the  functions  of  super  supreme  justices.  In  ex- 
ercising the  recall  in  such  an  instance,  the  electors  of  the 
second  district  would,  in  effect,  assume  all  the  functions 
of  one  of  the  coordinate  branches  of  the  state  govern- 
ment of  Oregon,  setting  aside  the  judiciary  for  the  mo- 
ment and  making  each  elector  in  the  second  district  a 
super  supreme  judge,  exercising  power  above  the  judici- 
ary and  above  the  constitution  itself.  *  *  *  The  people 
are  not  in  position  to  pass  upon  the  legal  questions 
involved  in  the  instructions  to  a  jury.  They  cannot  be 
constituted  and  do  not  want  to  be  constituted  a  super 
supreme  court,  superseding  and  setting  aside  the  consti- 
tutional supreme  court.  They  are  sane  and  sound  in 
their  judgments  on  ordinary  issues,  but  they  never  have 
claimed  nor  ever  will  claim  that  they  are  all  skilled  in 
the  law.  *  *  *  In  the  very  nature  of  things,  it  is  as  the 
confusion  of  tongues  at  the  Tower  of  Babel  for  an  elec- 
torate of  laymen  to  attempt  determination  of  whether 
a  judge  is  right  or  wrong  on  a  legal  question."1 

The  best  that  can  be  said  for  the  recall  as  an  accu- 
rate means  of  determining  the  efficiency  of  a  technical 
official  is  that  the  people  will  have  enough  sanity  and 

Oregon  Journal,  July  7,  13,  June  19,  Sept.  8,  1911. 


230  POPULAR  GOVERNMENT 

judgment  never  to  use  it.  It  would  be  much  safer,  how- 
ever, if  it  could  be  restricted  in  its  operation  so  that  it 
could  not  be  invoked  in  this  class  of  cases.  For  there  is 
no  disputing  the  fact  that  efficient  officers  may  be  sub- 
jected to  the  recall  on  such  occasions,  so  long  as  it  is 
open  to  use  for  such  purposes,  and  particularly  so  long 
as  officers  are  frequently  called  upon  to  make  decisions 
that  may  arouse  great  public  resentment  and  excitement, 
even  though  the  decision  be  accurate  and  fair.  This 
does  not  mean  that  there  can  be  no  public  opinion  in 
regard  to  technical  service,  but  merely  that  in  such  cases 
public  opinion  cannot  function  directly  in  technical  mat- 
ters. It  can,  however,  function  indirectly  by  passing 
judgment  upon  the  general  results  of  the  administration. 
The  author  recalls  an  incident  of  twenty-five  years 
ago  when  the  State  Board  of  Health  of  Indiana,  be- 
cause of  certain  primitive  methods  that  children  Would 
indulge  in,  in  cleaning  their  slates,  issued  an  order  pro- 
hibiting the  use  of  slates  in  the  public  schools  and  ex- 
plaining the  theory  upon  which  the  order  was  given.  At 
the  time  it  aroused  violent  protest  in  many  sections  of 
the  state.  The  press,  in  its  efforts  to  discredit  the  board, 
designated  its  secretary  as  the  "bughouse"  man.  If 
there  had  been  a  recall  in  existence,  undoubtedly  serious 
efforts  would  have  been  made  to  invoke  it  against  the 
board  that  thus  invaded  the  sacred  rights  of  home  rule, 
and  imposed  such  unnecessary  restrictions  upon  the  in- 
nocent conduct  of  the  pupils.  The  whole  theory  of  bac- 
teriology, which  the  Secretary  of  the  Board  of  Health 
was  then  trying  to  popularize  with  the  people,  in  the 
interest  of  their  health  and  welfare,  met  with  incredulity 
and  hostility.  A  popular  vote  at  that  time  upon  the 
measure  involved  would  have  probably  worked  irretriev- 
able loss  to  the  best  interests  of  the  state.  A  few  years 


THE  RECALL  OF  PUBLIC  OFFICERS          231 

later,  when  the  results  of  their  program  became  apparent 
in  the  reduced  amount  of  suffering  and  disease,  the  same 
program  would  have  been  enthusiastically  endorsed. 
Herein  lies  an  actual  menace,  and  it  would  seem  that  a 
people  would  rule  themselves  more  wisely  if  they  so 
adapted  their  machinery  of  government  that  public  opin- 
ion would  have  occasion  only  to  pass  upon  the  results 
of  expert  service,  rather  than  upon  its  technical  suffi- 
ciency. The  recall  inevitably  tends  to  secure  the  latter 
and  prevent  the  former. 

In  using  the  recall  election  to  determine  the  efficiency 
of  quasi-political  or  executive  officers,  we  find  some  of 
the  same  difficulties.  Obviously  the  efficiency  of  an  ad- 
ministrator will  depend  largely  upon  the  character,  type, 
and  technical  efficiency  of  the  men  that  he  appoints  and 
retains  in  service.  We  have  already  seen  that  upon  such 
questions  a  public  opinion  is  absolutely  futile,  and  there- 
fore, that  a  vote  on  such  a  matter  might  be  vicious, 
but  never  constructive  or  intelligent.  Public  opinion  can 
function  in  such  a  case  only  indirectly,  by  choosing  the 
chief  administrator  and  by  judging  of  the  results  of  his 
general  administration.  This  is  the  system  in  vogue  in 
the  federal  administration,  and  it  is  generally  admitted 
by  the  students  of  our  government  that  the  reconcilia- 
tion between  administrative  efficiency  and  amenability 
to  popular  control  has  been  more  nearly  solved  here 
than  in  any  other  part  of  our  political  experience.  More- 
over, it  should  be  noticed  that  no  one  has  ever  seriously 
advocated  that  we  should  elect  our  cabinet  members,  to 
say  nothing  of  subjecting  them  to  the  popular  recall.  It 
is,  perhaps,  even  more  significant  that  there  have  been 
few  if  any  demands  for  the  recall  of  the  President,  while 
there  is  a  growing  demand  to  lengthen  the  term  and  make 
him  ineligible  for  reelection.  These  circumstances  and 


232  POPULAR  GOVERNMENT 

tendencies,  together  with  the  movement  for  the  short  bal- 
lot in  state  constitutions,  would  seem  to  indicate  that  the 
most  efficient  and  the  most  truly  democratic  government 
would  be  that  in  which  public  opinion  sought  to  function 
directly  only  in  the  choice  of  a  few  leaders,  and  measured 
their  services  by  the  results  that  they  achieved. 

The  reliability  of  the  recall  election  as  a  means  of 
determining  the  efficiency  of  purely  political  officers 
presents  a  slightly  different  question,  but  one  upon  public 
opinion  would  be  doubtful,  if  not  impotent.  Whether 
a  member  of  the  legislature  is  an  efficient  member  de- 
pends upon  many  factors  quite  outside  of  the  range  of 
observation  and  knowledge  of  the  average  voter.  The 
efficiency  of  such  an  officer  will  depend  upon  the  quality 
of  his  committee  work,  his  capacity  to  get  on  with  his 
colleagues,  the  amount  of  study  that  he  gives  to  his 
public  duties,  and  his  capacity  to  understand  problems 
and  to  make  real  contributions  to  their  solution.  A 
legislative  member  may  vote  according  to  the  wishes 
of  the  majority  of  his  constituents,  he  may  be  present 
at  roll  calls,  and  formally  comply  with  the  official  re- 
quirement of  his  office,  but  at  the  same  time  be  a  very 
inefficient  member.  He  may  shirk  his  committee  work, 
decline  to  study  public  problems,  give  only  a  passing 
interest  to  the  public  business,  have  no  influence  with  his 
colleagues,  and  yet  give  to  the  average  voter  of  his  dis- 
trict the  impression  that  he  is  reasonably  efficient.  The 
elements  that  make  for  efficiency  in  legislative  and  sim- 
ilar work  are  so  intangible  and  difficult  to  ascertain  that 
a  public  opinion  upon  such  matters  could  only  exist, 
except  in  exceptional  cases,  after  a  considerable  period 
had  elapsed.  It  would  seem,  under  these  circumstances, 
that  popular  elections  would  not  register  a  true  or  in- 
telligent opinion  upon  the  matter  involved,  except  after 


THE  RECALL  OF  PUBLIC  OFFICERS          233 

such  an  extended  period  of  public  service  as  would  afford 
an  opportunity  to  measure  efficiency  by  results  obtained. 
It  would  seem  the  part  of  wisdom,  therefore,  to  submit 
such  questions  to  the  electorate  only  at  such  stated 
periods,  and  not  at  any  moment  that  might  be  determined 
by  those  who  could  file  the  necessary  papers. 

From  the  foregoing  discussion  we  may  draw  the 
conclusions  that  the  efficiency  of  a  recall  election  to  de- 
termine the  guilt  or  innocence  of  an  officer  accused  of 
corrupt  or  illegal  conduct,  or  of  official  inefficiency,  is 
negligible,  since  in  both  classes  of  cases  the  determina- 
tion would  depend  upon  matters  lying  wholly  outside 
the  range  of  information  and  experience  of  the  average 
voter.  On  the  other  hand,  as  a  means  of  determining 
whether  the  political  official  is  in  harmony  with  the 
public  opinion  of  the  community,  on  questions  upon  which 
a  public  opinion  may  be  said  to  exist,  it  may  serve  a  very 
useful  purpose.  The  difficulty  would  be  to  restrict  its 
use  to  the  limited  class  of  cases  in  which  it  may  prove 
useful.  So  far  no  efforts  have  been  made  in  this 
direction. 

Doubtless  many  of  the  advocates  of  the  recall  would 
answer  that  its  real  value  consists  not  so  much  in  the 
fact  that  the  recall  election  will  render  accurate  deter- 
minations upon  the  questions  submitted,  but  that  it  will 
be  an  effective  club  hanging  over  the  head  of  public 
officers — an  ever  present  incentive  to  them  to  do  their 
duty  and  thus  to  avoid  the  expense  and  danger  of  a  re- 
call election.  How  effective  this  potential  threat  will 
be  will  depend  largely  upon  those  who  can  most  easily 
employ  it.  Too  frequently  it  is  tacitly  assumed  that  only 
those  members  of  society  who  are  interested  in  honest, 
efficient,  and  public-spirited  officers  will  avail  themselves 
of  the  opportunity.  To  get  a  petition  bearing  from 


234  POPULAR  GOVERNMENT 

twenty-five  to  sixty  per  cent,  of  the  voters  is,  except 
perhaps  in  small  communities,  a  gigantic  undertaking. 
It  is  a  task  that  will  require  organizing  genius,  publicity, 
money,  time,  and  energy.  The  groups  or  individuals  who 
can  most  easily  command  those  resources  will  be  the 
ones  who  will  most  easily  secure  the  petitions  and  who 
will,  therefore,  wield  the  club.  But  it  does  not  follow 
that  those  who  wield  the  club  will  be  those  who  will  do 
it  in  the  interests  of  the  public. 

We  hear  much  about  special  interests  in  politics.  By 
special  interests  we  mean  those  who  have  a  peculiarly 
selfish  or  sordid  motive  in  seeking  to  influence  or  control 
the  government.  The  reason  for  the  great  strength  of 
the  special  interests  is  that  with  them  politics  is  a  busi- 
ness interest.  They  work  at  politics  with  the  same  zest, 
determination,  and  assiduity  that  they  work  at  private 
business.  Consequently  they  are  organized  for  that  pur- 
pose. With  their  organization,  it  would  be  much  easier 
for  them  to  secure  the  circulation  of  a  petition,  than  it 
would  be  for  a  group  of  citizens  whose  only  interest  was 
the  public  weal,  and  who  were  not  organized.  In  other 
words,  the  petition  places  a  special  premium  upon  those 
elements  in  politics  most  highly  organized.  Other  things 
being  equal,  therefore,  the  special  interests  are  the  ones 
who  may  most  easily  and  effectively  wield  the  club  that 
the  recall  provides.  Of  the  seventeen  cases  of  recall  elec- 
tions held  in  Oregon  up  to  1915,  as  described  by  Profes- 
sor Barnett,1  at  least  five  of  them  were  secured  by  persons 
who  had  an  economic  interest,  although  invariably  the 
real  reason  was  not  disclosed  in  the  petition.  Moreover, 
these  were  all  city  or  county  elections,  where  the  burden 
of  getting  a  petition  would  not  be  so  great.  In  a  state 

1  The  Operation  of  the  Initiative,  Referendum  and  Recall  in  Oregon. 
pp.  191-218.  ' 


THE  RECALL  OF  PUBLIC  OFFICERS          235 

election,  where  the  obtaining  of  the  signatures  would  be 
such  a  tremendous  undertaking,  the  advantage  it  would 
thus  give  to  the  organized  efforts  of  the  special  interests 
is  obvious.  It  would  be  no  great  task  for  the  wet  inter- 
ests, or  for  the  public  utilities  of  a  state,  through  their 
organizations,  to  circulate  a  petition  and  secure  the  neces- 
sary names.  But  for  those  citizens  whose  only  interest 
would  be  their  devotion  to  the  public  welfare,  such  an 
undertaking  would  be  almost  impossible. 

Having  secured  the  petition,  the  interests  who  held 
it  could  place  it  in  "cold  storage,"  as  a  continuing  threat 
against  any  act  on  the  part  of  the  officer  that  the  holders 
of  the  petition  would  not  approve.  When  one  considers 
the  cost  and  energy  involved  in  an  election,  and  when  one 
remembers  that  one  has  little  chance  to  have  the  merits 
of  one's  case  thrashed  out  and  decided  according  to  its 
merits,  the  little  group  that  "owns"  a  petition,  charging 
an  officer  with  improper  conduct,  and  prepared  to  wage 
an  effective  campaign  against  him  in  case  of  an  election, 
is  vested  with  a  power  that  is  as  great  as  it  is  tyran- 
nical. He  must  either  acquiesce  in  the  demand  of  the 
little  group,  or  submit  his  case  to  the  determination 
of  voters  who  know  nothing  about  it,  with  the  painful 
realization  that  the  organized  forces  of  publicity  are 
against  him.  This  evil  could  be  partially  remedied  by 
amendments  to  the  law  providing  that  petitions  should 
be  filed  within  a  specified  time  after  the  signatures  are 
received,  but  no  such  amendments  have  been  made,  al- 
though the  holding  of  petitions  in  "cold  storage"  has 
occasionally  occurred.  Evidence  is  not  wanting  that  those 
who  have  circulated  petitions  in  regard  to  the  referen- 
dum have  dropped  the  petition  upon  the  payment  of  a 
stipulated  sum.1  The  same  abuse  is  obviously  possible 

*Ibid.,  P.  68, 


236  POPULAR  GOVERNMENT 

in  connection  with  the  recall,  and  is  simply  additional 
evidence  of  the  dangerous  power  the  recall  places  in 
the  hands  of  those  organized  interests  who  can  easily 
secure  the  necessary  signatures. 

One  vital  consideration  to  be  noted  here  is  the  effect 
the  recall  will  have  upon  the  type  of  men  attracted  to 
public  office.  One  of  the  greatest  tasks  that  confronts 
modern  governments  is  the  development  of  a  highly  effi- 
cient administration,  competent  to  grapple  with  the  com- 
plex and  intricate  problems  of  the  day.  Such  questions 
as  public  health,  industrial  disease,  equitable  taxation, 
and  the  control  of  public  utilities,  can  never  be  adequately 
met  until  the  standards  of  public  administration  have 
been  infinitely  improved.  This  means  that  the  condi- 
tions of  employment  in  public  administration  must  be 
such  as  will  attract  and  hold  the  ablest  experts  and 
technicians,  and  conduce  to  the  creation  and  maintenance 
of  a  high  quality  of  professional  esprit  de  corps.  The 
public  service  can  be  no  better  than  the  type  of  men  it 
can  attract.  It  needs  no  argument  to  demonstrate  that 
real  scientists  and  the  highest  grade  of  experts  would 
rarely  be  induced  to  accept  employment  where  they  might 
be  charged  with  any  offense  that  might  please  the  fancy 
of  the  irresponsible  signers  of  a  petition,  and  where  the 
truth  or  falsity  of  the  charge  would  be  left  to  be  acci- 
dents of  a  popular  election.  If  democracy  is  to  survive 
it  must  prove  its  competence  to  develop  technical  admin- 
istrative machinery  that  is  able  to  solve  its  problems. 
Surely  the  adoption  of  the  recall  is  not  a  step  in  that 
direction. 

Any  discussion  of  the  recall  would  not  be  practical 
that  did  not  contain  a  consideration  of  the  alternatives 
that  are  available.  There  are  four  of  these  that  may 
claim  our  consideration.  The  first  one  is  the  fixed  term 


THE  RECALL  OF  PUBLIC  OFFICERS          237 

with  popular  election.  This  postpones  any  action  of  the 
public  until  ample  time  has  elapsed  for  the  officer  to 
have  demonstrated  what  he  can  do  and  for  the  public 
to  have  come  to  a  deliberate  and  mature  opinion.  It 
gives  the  officer  a  fixed  time  during  which  he  can  give 
all  his  attention  to  the  performance  of  his  duties,  with- 
out the  demoralizing  fear  that  he  may  be  called  upon 
to  justify  his  policies  and  administration  in  the  very 
midst  of  an  important  task.  It  protects  the  public  against 
that  hasty  and  precipitate  judgment  that  is  incompatible 
with  judicious  action.  For  quasi-political  officers  this 
has  seemed  to  be  a  reasonably  satisfactory  method. 

The  second  alternative  is  removal  by  judicial  process. 
Obviously  this  would  be  appropriate  only  in  cases  where 
corrupt  and  illegal  action  has  been  alleged.  The  superior 
appropriateness  of  this  procedure  to  the  crude  and  im- 
possible methods  of  the  recall  for  determining  the  guilt 
or  innocence  of  those  accused  of  improper  or  illegal 
conduct,  is  so  obvious  as  to  make  comment  or  argument 
unnecessary. 

The  third  alternative  is  removal  by  executive  power. 
As  applied  to  technical  officers  and  minor  administrative 
officials,  this  seems  especially  effective.  It  has  been  em- 
ployed in  the  federal  government  with  conspicuous  suc- 
cess. Its  advantages  over  the  recall  have  been  already 
discussed.  Obviously  it  should  not  apply  to  officers  that 
are  purely  political. 

The  fourth  method  is  impeachment  or  legislative 
address.  This  has  been  found  to  be  unwieldy,  subject 
to  politics  to  a  great  extent,  and  too  cumbersome  for 
the  many  cases  of  removal  that  are  continually  presented 
by  the  ever-growing  system  of  governmental  service. 
As  applied  to  the  chief  executive  and  the  courts,  it  may 

rve  as  a  wholesome  check,  but  it  is  wholly  inadequate 


serve  as  a 


238  POPULAR  GOVERNMENT 

to  the  many  and  diverse  needs  for  removal  that  are  con- 
stantly occurring. 

In  the  light  of  these  alternatives  it  seems  that  the 
recall  is  not  the  most  efficient  method  of  removal  from 
office,  except,  perhaps,  in  the  case  of  purely  political 
officers,  charged  with  failure  to  represent  accurately 
Uheir  constituents.  Even  here  there  are  some  difficulties 
to  be  overcome  before  it  can  become  a  very  valuable  in- 
strument of  popular  control.  Even  were  the  validity  of 
these  conclusions  granted,  there  would  still  remain  those 
who  would  advocate  the  recall  upon  one  or  both  of  two 
grounds,  viz.,  that  the  recall,  by  bringing  about  more 
frequent  elections  and  therefore  more  frequent  partici- 
pation in  the  affairs  of  government,  tends  to  increase 
the  civic  interest  of  the  voters,  and  secondly,  that  the 
performance  of  these  duties  necessarily  involves  the  edu- 
cation of  the  citizen.  If  these  two  contentions  are  sound 
they  afford  very  persuasive  reasons  why  the  recall  should 
be  adopted  and  retained,  even  though  it  be  otherwise 
inefficient  as  an  instrument  of  government. 

To  the  first  proposition  two  observations  are  perti- 
nent. The  first  is  the  well-known  principle  of  human 
nature  that  when  one  has  two  chances  at  making  a  deci- 
sion, the  average  person  will  take  less  interest  in  the  first 
chance.  Nothing  is  more  demoralizing  to  students  than 
the  consciousness  that  if  they  fail  in  their  work,  an- 
other opportunity  will  be  given  them  without  penalty, 
In  so  far  as  the  recall  affects  the  interest  of  the  average 
voter  in  the  election,  it  would  seem  logical  that  it  would 
affect  him  the  same  way.  If  there  is  a  recall  by  which  an 
officer  can  be  removed  in  case  he  turns  out  to  be  undesir- 
able, it  is  but  natural  for  the  voter  to  be  more  careless 
in  his  selection  than  if  he  knew  that  once  elected  the 
man  would  hold  office  for  a  fixed  term.  The  more  there 


THE  RECALL  OF  PUBLIC  OFFICERS          239 

is  at  stake  in  a  given  election,  the  more  interest  it  is 
likely  to  arouse. 

The  second  observation  is  that  experience  seems  to 
show  that  a  multiplicity  of  elections,  instead  of  increas- 
ing the  interest  of  the  voter,  tends  to  confuse  and  dis- 
courage the  average  person.  The  whole  psychology  of 
the  short  ballot  movement  is  based  upon  the  proposition 
that  if  the  voter's  duties  be  simplified,  their  importance 
augmented,  and  the  ease  with  which  they  can  be  intelli- 
gently discharged  increased,  his  interest  will  be  propor- 
tionately heightened.  This  seems  to  have  been  amply 
demonstrated  in  national  politics,  where  the  people  elect 
only  the  members  of  Congress,  the  Vice-President,  and 
the  President.  The  interest  in  the  presidential  election,  the 
general  intelligence  displayed,  and  the  care  with  which  the 
candidates  are  studied,  show  that  when  the  duty  is  simpli- 
fied and  its  proper  discharge  made  obviously  important, 
the  voter  will  respond  with  increasing  interest  and  zeal. 
The  more  elections  there  are,  the  less  importance  neces- 
sarily attaches  to  each,  the  voters'  duties  become  increas- 
ingly difficult  to  perform,  while  the  natural  civic  incentive 
diminishes  in  a  corresponding  ratio.  It  seems  difficult 
to  believe,  therefore,  that  the  additional  elections,  pro- 
vided by  the  recall,  will  increase  the  civic  interest  and 
stimulate  the  overworked  voter  to  new  energy  and  zeal. 

Will  this  multiplicity  of  elections,  and  the  new  duties 
thrown  upon  the  elector  by  the  recall,  result  in  the  politi- 
cal education  of  the  people?  If  it  were  the  custom  and 
nature  of  the  people  to  prepare  carefully  for  every 
political  duty  imposed  upon  them,  it  would  doubtless 
follow  that  the  more  duties  imposed,  the  greater  would 
be  their  political  training  and  knowledge.  If  this  be 
true  one  might  expect  to  find  the  people  in  cities,  where 
the  voters  elect  a  long  list  of  municipal  officers,  boards, 


240  POPULAR  GOVERNMENT 

and  commissions,  the  most  intelligent  and  the  best  in- 
formed upon  all  matters  of  municipal  government.  But 
again  experience  has  shown  that  such  is  not  the  case. 
There  is  incontrovertible  evidence  to  the  effect  that  the 
more  duties  that  are  thrown  upon  the  electorate,  the 
less  attention  and  study  is  given  to  the  matter  by  the 
voter,  and  for  the  very  simple  reason  discussed  above, 
that  under  such  circumstances  the  voter  takes  less  interest 
in  the  affairs  at  stake.  Every  student  of  politics  will 
agree  that  the  weakness  of  democracy  is,  to  a  large  ex- 
tent, due  to  the  incapacity  or  the  unwillingness  of  the 
average  citizen  to  prepare  himself  adequately  for  the 
civic  duties  that  are  imposed.  It  is  certainly  a  violent 
assumption  to  suppose  that  by  increasing  both  the  num- 
ber and  complexity  of  political  duties,  through  the  adop- 
tion of  the  recall,  the  citizen  will  receive  a  larger 
capacity  or  renewed  willingness  and  zest  adequately  to 
prepare  himself  for  the  new  duties  thus  imposed.  The 
simplification  of  the  voter's  duties  until  they  come  within 
the  limits  of  time  and  interest  that  the  average  citizen 
will  devote  to  them,  and  the  corresponding  increase  in 
the  importance  of  such  tasks,  until  their  vital  significance 
affords  a  dramatic  appeal  to  instinct  and  imagination, 
would  seem  to  offer  the  most  rational  basis  for  the  civic 
improvement  and  the  political  education  of  the  people. 


SUGGESTIVE   QUESTIONS   FOR 

CHAPTER  IX 
V 

I.  A  judge  is  subjected  to  a  recall  election,  charged 
with  having  decided  a  case  contrary  to  the  law*  Is  a 
public  opinion  possible  in  the  election? 

Iir  Suppose  he  is  charged  with  fraud,  would  a  public 
opinion  on  the  issue  be  possible  ? 

III.  Suppose  he  is  charged  with  general  incompetence, 
would  a  public  opinion  be  possible  on  that  issue? 

IV.  •'  "The  recall  of  public  officers  is  a  club  in  the  hands 
of  the  public  by  which  officers  may  be  made  responsive 
to  the  public."     Criticize  the  foregoing  statement. 

V.  Are  there  any  other  methods  of  official  removal 
that  you  deem  superior  to  the  recall  and  what  are  they? 

VI.  What  would  be  the  effect  of  the  recall  upon  the 
type  of  men  attracted  to  public  office  ? 

VII.  What  would  be  the  effect  of  the  recall  upon  the 
conduct  of  a  man  in  office? 

VIII.  What  would  be  the  effect  of  the  recall  upon 
the  voters'  attitude  toward  the  regular  election? 

IX.  What  would  be  the  effect  of  the  recall  of  judicial 
decisions  upon  the  courts? 

X.  Would  you  favor  the  recall  of  the  decisions  of 
the  state  board  of  health? 


241 


CHAPTER  X 

THE  SHORT  BALLOT  AND  POPULAR  GOVERNMENT 

THE  evils  of  representative  government  in  America  have 
been  found  to  flow  from  the  inability  or  unwillingness 
of  the  electorate  to  select  officers  competent  for  their 
tasks  and  worthy  of  the  public  trust.  The  people  granted 
to  the  boss  and  the  machine  tremendous  power,  but  failed 
to  throw  the  spotlight  of  publicity  upon  their  acts, 
and  too  frequently  declined  to  hold  them  to  the  theory  of 
strict  accountability.  The  machine,  entrusted  with  many 
matters  of  which  the  public  were  completely  ignorant, 
subject  to  pressure  by  selfish  and  sordid  interests  politi- 
cally as  intelligent  as  selfishly  determined,  and  with  no 
compensating  pressure  from  the  friends  of  decency  arid 
virtue,  with  no  legal  accountability,  and  with  political  re- 
sponsibility largely  hidden  by  the  bewildering  intricacies 
of  practical  politics,  labored  under  constant  temptations 
to  political  abuse  of  every  kind.  The  marvel  is  not  that 
the  machine  became  corrupt  and  inefficient  as  frequently 
as  it  did,  but  that  it  served  the  public  as  effectively  and 
honestly  as  it  has.  That  America  has  accomplished  sub- 
stantial progress  under  these  conditions  is  a  remarkable 
tribute  to  the  political  sagacity  and  the  common  sense  of 
the  people. 

That  the  public  have  sought  to  operate  a  system  under 
circumstances  that  made  such  conditions  inevitable,  how- 
ever, is  not  so  flattering  to  their  intelligence.  It  is  due 
largely  to  the  fatal  optimism  of  American  democracy, 
to  an  unwillingness  to  view  political  problems  as  techni- 
cal and  complex  and  to  the  existence  of  a  tyranny  of  estab- 

242 


THE  SHORT  BALLOT  243 

lished  phrases,  which  too  frequently  exists,  especially 
when  such  phrases  have  the  proper  rhythmic  cadence, 
and  smack  of  orthodox  ideals. 

Those  who  suggested  that  some  of  the  evils  of  Ameri- 
can politics  resulted  from  the  popular  attempt  to  do  too 
much,  with  the  result  that  the  citizens,  through  indiffer- 
ence or  neglect,  left  many  of  their  functions  to  the  mercy 
of  the  boss,  were  denounced  for  a  lack  of  faith  in  the 
genius  of  democracy.  "You  are  afraid  to  trust  the  peo- 
ple" has  too  frequently  been  an  effective  reply  to  con- 
structive programs  of  reform,  which  sought  to  cut  down 
the  duties  and  functions  of  the  voter  to  those  which  he 
would  be  competent  and  eager  to  perform.  The  product 
of  years  of  thought,  research,  and  investigation,  has  too 
frequently  been  hurled  aside,  if  based  upon  the  recog- 
nized limitations  of  the  voters'  power,  merely  because 
it  was  not  "democratic."  The  tyranny  of  established 
phrases  has  thus  prevented  a  keen  analysis  of  the  prob- 
lem and  scientific  efforts  toward  its  solution. 

The  people  have  been  slow  to  realize  that  the  limita- 
tions of  public  opinion  necessarily  constitute  the  limita- 
tions of  democracy.  Popular  government  does  not  depend 
upon  the  number  of  functions  the  voter  performs,  nor 
upon  the  frequency  and  complexity  of  popular  elections, 
but  upon  the  completeness  with  which  governmental  ac- 
tivities conform  to  public  opinion.  Any  vote  which  does 
not  register  true  opinion,  is  not  an  instrument  of  popular 
control.  It  is  merely  an  abandonment  of  the  decision 
involved  to  the  caprice  of  ignorance  or  to  the  organized 
activities  of  the  boss.  It  is  not  democracy  in  any  rational 
usage  of  the  term.  When  the  voters  of  a  state  are  asked 
at  one  election  to  vote  for  forty-seven  officers,  and  when 
not  one  per  cent,  of  the  voters  have  any  knowledge  of 
the  candidates  for  more  than  six  or  seven  offices,  such 


244  POPULAR  GOVERNMENT 

a  vote  is  the  merest  sham  of  democracy.  The  only  thing 
that  saves  the  whole  proceeding  from  hollow  mockery  is 
the  interposition  of  the  boss  or  the  machine.  If  the  peo- 
ple are  alert,  the  politicians  will  not  dare  to  nominate 
candidates  whose  conduct  will  antagonize  the  public  and 
lead  to  popular  revolt  against  the  party  that  is  in  power. 
But  if,  to  the  burden  of  the  election,  is  added  the  duty 
of  nominating  all  of  these  candidates  by  the  direct  prim- 
ary, which  tends  to  destroy  the  doctrine  of  party  respon- 
sibility, and  to  break  down  the  power  of  responsible 
political  leaders,  then  there  is  nothing  to  prevent  the 
popular  election  from  becoming  a  gigantic  lottery,  sub- 
ject only  to  the  influence  of  the  irresponsible  makers  of 
publicity,  who  are  in  no  way  accountable  to  the  opinion 
of  the  public. 

Thus  the  direct  primary,  inaugurated  to  prevent  the 
evils  resulting  from  the  voter's  inability  to  discharge 
intelligently  the  duties  imposed  upon  him  by  an  impos- 
sible system  of  elections,  has  simply  doubled  the  duties 
thus  imposed,  and  in  addition  denied  the  voter  much 
of  the  assistance  before  provided  by  responsible  party 
leadership.  The  accountability  of  the  boss  and  the  ma- 
chine to  public  opinion,  may  not  have  been  a  perfect 
instrument  of  popular  control,  but  it  was  infinitely  supe- 
rior to  a  vote  unguided  either  by  a  true  opinion  of  the 
voters  or  the  activities  of  the  party  boss. 

The  same  is  true  of  such  other  remedies  as  the  initia- 
tive, the  referendum,  and  the  recall.  They  all  cast  new 
and  more  complicated  burdens  upon  the  voter,  already 
suffering  from  an  excess  of  civic  duties.  The  facts  are 
that  the  time  and  energy  that  the  average  voter  can  and 
will  give  to  the  performance  of  such  duties  are  limited. 
If  the  duties  imposed  upon  him  exceed  these  limits,  the 
duties  will  not  be  performed.  The  remedy  is  not  to  be 


THE  SHORT  BALLOT  245 

found,  therefore,  in  increasing  the  burdens  already  borne, 
but  in  restricting  them  to  the  limits  established  by  the 
interest,  intelligence,  and  energy  of  the  average  citizen, 
and  by  making  them  so  vitally  important  that  they  will 
challenge  his  attention  and  stimulate  his  interest. 

"We  are  told,n  observes  President  Lowell,  "that  the 
cure  for  the  ills  of  democracy  is  more  democracy,  but 
surely  that  depends  upon  the  disease  from  which  it  is 
suffering.  To  tell  a  merchant  whose  business  has  out- 
grown his  old  methods  of  personal  management  that 
the  cure  for  his  inability  to  supervise  it  is  more  supervi- 
sion on  his  part,  that  he  ought  to  pay  greater  attention 
to  details,  might  be  the  advice  of  a  country  storekeeper, 
but  it  would  not  be  that  of  anyone  familiar  with  admin- 
istration on  a  large  scale.  Such  a  person  would  recom- 
mend the  appointment  of  trustworthy  permanent  agents 
to  relieve  him  of  detail,  and  would  add  that  if  he  had 
in  his  employ  an  unusually  faithful  and  capable  man  he 
had  better  keep  him  as  long  as  possible  and  make  it  worth 
his  while  to  stay.  The  cure  for  the  ills  of  popular  gov- 
ernment is  more  attention  by  the  people  to  the  things 
they  undertake,  and  that  object  is  not  promoted  by 
undertaking  too  much.  There  is  a  limit  to  the  total  amount 
of  labor  the  whole  people  can  expend  on  public  affairs, 
and  that  amount  must  be  divided  among  the  different 
matters  they  are  called  upon  to  consider.  A  fraction  is 
diminished  by  increasing  the  denominator."1 

These  are  the  considerations  that  have  led  to  the  de- 
mand for  the  short  ballot.  To  ask  the  voters  to  nominate 
and  elect  a  long  list  of  officers,  many  of  whom  are  wholly 
inconspicuous  and  relatively  unimportant,  about  whom 
the  overwhelming  majority  of  the  voters  have  no  infor- 
mation or  concern,  and  where,  therefore,  there  can  be  no 

1  Public  Opinion  and  Popular  Government,  pp.  108-105. 


246  POPULAR  GOVERNMENT 

possible  basis  for  the  existence  of  a  public  opinion,  is 
to  leave  the  selection  of  officers  either  to  the  dictates  of 
party  leaders,  or  still  worse,  to  the  unguided  fancy  of 
the  uninformed.  Under  such  conditions  the  professional 
politician  is  indispensable  to  the  actual  conduct  of  gov- 
ernment. He  is  the  civic  specialist.  He  knows  about  all 
the  offices  that  are  to  be  filled,  the  requirements  that  are 
made  of  the  candidates,  and  the  men  who  are  available- 
for  the  various  tasks,  whereas  the  average  voter  is  com- 
pletely ignorant  of  all  these  facts.  The  voter  may  either 
take  the  recommendation  of  the  party  organization,  and 
then  hold  it  responsible  for  results,  or  he  can  reply  only 
upon  his  own  ignorance.  Obviously  the  former  is  the 
wiser  course,  and  the  one  most  frequently  followed,  and 
it  is  this  fact  that  makes  party  responsibility  so  important 
in  our  form  of  government. 

It  may  be  argued  that  the  citizen  should  take  the 
time  to  inform  himself  on  all  of  the  candidates  and  offices 
that  are  involved,  in  order  that  when  the  time  comes,  he 
could  vote  intelligently  without  the  aid  of  the  politician 
or  the  boss.  Undoubtedly  such  a  course  of  action  would 
be  desirable,  if  possible,  but  the  facts  are  that  the  aver- 
age voter  cannot  and  will  not  do  it,  and  the  instruments 
of  government  must  be  adjusted  to  the  interest,  intelli- 
gence, and  possibilities  of  the  average  voter  as  he  really 
is,  and  not  as  he  might  be.  Democracy  never  will  achieve 
its  best  success  until  it  is  adjusted  to  the  actual  facts  of 
life  and  not  based  upon  impossible  presumptions.  The 
only  way  to  restrict  the  power  of  the  boss  and  the  ma- 
chine is  to  make  them  less  indispensable  to  the  conduct 
of  government.  If  the  duties  are  so  simplified  that  the 
normal  citizen  can  understand  them,  so  easy  to  perform 
that  he  will  find  the  time,  and  so  tragically  important 
that  he  will  be  concerned,  he  will  be  more  independent 


THE  SHORT  BALLOT  247 

of  the  boss,  and  the  machine  will  lose  in  power.  It  is 
too  much  to  expect  the  politician  to  disappear,  for  there 
will  always  be  need  of  political  leaders  who  make  the 
public  business  their  chief  concern,  but  it  is  not  impossible 
so  to  curtail  their  power  that  abuse  will  be  less  likely 
and  their  responsibility  more  definite. 

As  an  evidence  of  how  the  long  ballot  deprives  the 
voter  of  political  power  and  confers  it  upon  the  politician, 
Mr.  Richard  S.  Childs  cites  an  election  in  Ohio,  in  1908, 
in  which  the  people  of  Cleveland  were  asked  to  elect 
forty-seven  different  officers.  uWhen  the  ballot  is  long," 
observed  Mr.  Childs,  "i.  e.,  when  there  are  many  offices 
to  be  filled  simultaneously  by  popular  vote,  the  people 
(except  in  village  elections  where  they  can  recognize 
every  name  at  sight)  will  not  scrutinize  every  name, 
but  will  give  their  attention  to  a  few  conspicuous  ones 
and  vote  for  the  others  blindly.  In  voting  blindly  for  any 
name  the  politicians  select,  the  people  are  simply  dele- 
gating their  choice  to  a  few  half-known,  irresponsible 
men  whom  they  had  no  voice  in  choosing.  The  attempt 
to  get  the  people  to  say  who  shall  be  county  clerk,  for 
instance,  has  failed.  It  is  like  asking  a  question  of  a 
crowd  and  accepting  the  few  scattering  answers  as  the 
verdict  of  the  whole  mob.  It  is  not  democracy,  but 
obligarchy,  just  as  in  the  imagined  case  of  a  county  that 
held  incessant  elections  at  an  inconvenient  polling-place. 
In  this  case  it  is  not  the  inconvenience  of  voting  which 
practically  disfranchises  the  bulk  of  the  citizens,  but 
the  inconvenience  of  voting  intelligently.  In  the  test  of 
practice  it  has  thus  been  demonstrated  that  if  the  people 
are  asked  forty-seven  questions  at  one  time,  they  will 
not  give  back  forty-seven  answers  of  their  own,  but  will 
let  others  make  most  of  these  answers  for  them. 

"This  is  no  reflection  on  the  morals  or  intelligence  of 


248  POPULAR  GOVERNMENT 

the  people.  (Even  if  it  were,  in  planning  a  workable 
democracy  we  should  have  to  cut  our  cloth  accordingly.) 
It  is  simply  evidence  that  there  is  such  a  thing  as  asking 
the  people  more  questions  than  they  will  answer  care- 
fully. In  blindly  ratifying  party  nominations  the  people 
of  Ohio  are  doing  a  much  better  thing  than  voting  at 
random  or  not  voting  at  all.  The  controlling  elements 
in  the  party  have  some  slight  responsibility  and  some 
desire  to  'make  good/  There  is  some  chance  to  blame 
and  punish  some  one  if  things  go  wrong.  *  *  * 

"Thus  the  sheer  amount  of  political  work  thrust  on 
the  Ohio  citizen  is  so  great  that  he  cannot  perform  it 
intelligently  without  the  impossible  sacrifice  of  economic 
efficiency.  The  typical  Ohio  citizen,  therefore,  wisely 
defaults  these  excessive  political  obligations  which  are 
thus  arbitrarily  put  upon  him,  leaving  the  control  in  the 
hands  of  those  few  who  for  one  reason  or  another  can 
take  time  and  energy  for  such  work.  A  ballot  of  forty- 
seven  offices  thus  makes  citizenship  a  specialty — a  pro- 
fession— a  thing  for  experts  and  not  for  the  people. >u 

To  the  argument  that  the  only  hope  of  representative 
democracy  is  to  stimulate  the  citizen  to  the  point  of  in- 
terest where  he  will  make  a  careful  and  elaborate  inves- 
tigation of  the  forty-seven  different  offices  to  be  filled, 
and  the  qualifications  of  the  several  candidates  for  each 
of  these  forty-seven  places,  the  same  author  makes  the 
following  forceful  reply:  "That  the  American  electorate 
has  never  seen  fit  to  adopt  this  plan  is,  possibly,  rather 
fortunate,  for  if  'all  good  citizens'  did  go  into  politics, 
taking  an  active,  constructive  part  in  the  selection  of  all 
officials,  industry  prior  to  each  election  would  suffer 
wholesale  demoralization.  Moreover,  a  citizenship  that 
devotes  itself  primarily  to  earning  a  livelihood,  caring 

3  Short-Ballot  Principles,  pp.  24-26,  29. 


THE  SHORT  BALLOT  249 

for  a  family  and  going  to  bed  o'  nights  is  seeing  things 
in  reasonably  true  perspective  when  it  'hasn't  time'  to 
go  downtown  on  a  rainy  evening  to  argue  regarding  the 
nomination  of  Jones  for  county  clerk.  And,  finally, 
whether  it  ought  or  oughtn't,  it  won't.  So  that  settles 
it.  Human  nature  has  not  changed  perceptibly  since 
Adam,  and  a  plan  of  government  that  involves  radical 
alteration  in  the  consciences  of  fifteen  or  twenty  million 
citizens  will  wait  forever  for  its  intended  consummation. 
To  berate  the  electorate  for  indifference  when  it  fails 
to  fulfill  this  or  that  set  of  demands  is  as  useless  and  un- 
scientific as  berating  a  horse  for  failing  to  grow  a  square 
neck  to  fit  a  new-style  square  collar.  And  as  we  can't 
induce  the  electorate  to  change  its  nature  to  fit  the  pres- 
ent government,  we  must  reshape  the  government  to  fit 
the  electorate,  with  absolute  deference  to  all  the  latter's 
frailties."1 

Furthermore,  Mr.  Childs  believes  that  these  evils  of 
representative  government  are  not  going  to  be  remedied 
by  the  direct  primary,  for  that  merely  aggravates  the 
existing  intolerable  situation.  Referring  to  the  Ohio 
election  he  inquired,  "Can  you  imagine  any  ordinary 
voter,  comparing  the  individual  merits  of  each  candidate 
in  each  of  the  forty-seven  scrimmages?  An  election  pur- 
ports to  gather  opinions,  but  such  an  election  would  do 
nothing  of  the  sort.  It  would  be  like  letting  the  school 
children  vote — the  result  would  represent  little  or  noth- 
ing. In  big,  direct  primary  elections,  where  there  are 
not  tickets,  the  boss  is  often  plausible  when  he  argues: 
'You  had  at  least  my  judgment  under  the  old  convention 
system — now  you  have  nobody's  judgment,  for  the  peo- 
ple do  no  thinking  at  all  on  the  majority  of  the  names, 

1  "Politics   without   Politicians,"   Saturday   Evening   Post,   Jan.   22, 
1210. 


250  POPULAR  GOVERNMENT 

and  the  result  is  only  the  outcome  of  an  unjudged,  irre- 
sponsible scramble  for  office,  frequently  participated  in 
by  knaves  whom  I  would  have  excluded.' 

"No,  curse  the  boss  all  you  please,  but  we  are  indebted 
to  him  for  doing  the  work  which  the  electorate  ignores, 
and  thus  making  our  institutions  workable/'1 

Thus  the  efforts  of  the  advocates  of  direct  democracy 
to  secure  popular  government  have  defeated  the  very 
aims  to  which  their  efforts  were  directed.  This  has  been 
aptly  summarized  by  Mr.  Albert  M.  Kales.  "Formerly 
unpopular  government  was  founded  upon  the  absence  of 
any  voting.  Today  the  electorate,  while  voting  furi- 
ously, has  nevertheless  been  deprived  to  a  large  extent 
of  the  ballot  because  a  burden  of  knowledge  —  an  educa- 
tional qualification,  in  effect  —  has  been  placed  upon  it 
which,  under  present  conditions,  it  does  not  and  cannot 
fulfil.  Thus,  by  the  simple  process  of  too  much  so-called 
popular  democracy  —  that  is,  too  much  decentralization 
of  governmental  power  and  too  much  voting  —  we  have 
arrived  at  the  essential  condition  which  invites  the 
establishment  of  unpopular  government  —  namely,  the 
disfranchisement  of  the  electorate."2 

But  this  is  not  all.  Not  only  are  the  people  placed 
in  a  position  where  they  have  no  real  choice  in  the  selec- 
tion of  officers,  but  they  cannot  even  watch  them  when 
once  in  power.  If  the  people  of  a  city  elect  twenty-five 
municipal  officers,  only  three  or  four  of  whom  they  can 
know,  and  things  go  wrong  in  the  city's  administration, 
how  can  they  correct  the  evil?  Under  such  conditions 
responsibility  is  so  divided  that  every  officeholder  can 
evade  public  scrutiny.  The  voters  will  not  take  the 
time  to  locate  the  responsibility  when  it  is  concealed 


"  Unpopular  Government  in  the  United  States,  p.  48. 


THE  SHORT  BALLOT  251 

behind  such  a  network  of  decentralized  authority.  When 
a  glaring  evil  is  disclosed,  it  frequently  takes  a  specialist 
in  city  politics  to  locate  the  guilty  man,  so  complicated 
is  the  system.  Behind  this  smoke  screen  of  decentralized 
and  confused  responsibility,  the  guilty  officers  may  rest 
secure  from  the  retribution  of  public  wrath.  Criminal 
prosecutions  of  officials  accused  of  graft  have  amply 
demonstrated  the  truth  of  this  assertion.  Graft  has 
frequently  been  uncovered  with  little  effort,  but  when  it 
came  to  fix  the  responsibility  upon  the  guilty  man,  all 
efforts  failed.  If  the  energy  and  resourcefulness  of  the 
public  prosecutor,  aided  by  special  investigators,  detec- 
tives, and  experts,  have  difficulty  in  locating  the  guilty 
man,  how  can  it  be  expected  that  the  average  voter  will 
be  able  to  hold  the  officers  to  strict  account? 

Under  these  conditions  the  occasional  outbursts  of 
public  indignation  frequently  spend  themselves  in  impo- 
tence, for  as  Professor  Ross  has  observed,  uThe  might 
of  public  wrath  is  destroyed  by  anything  that  diverts  it 
from  an  individual  and  spreads  it  harmlessly  over  a  net- 
work of  administrative  responsibility.  The  common  in- 
dignation, always  confused  by  a  shifting  responsibility, 
is  most  baffled  when  responsibility  on  being  traced  back 
is  found  to  be  lodged  in  a  body  of  men.  It  is  this  fact 
that  accounts  for  the  increasing  disregard  of  public  opin- 
ion in  the  management  of  business.  Corporate  organiza- 
tion opposes  to  public  fury  a  cuirass  of  divided  responsi- 
bility that  conveys  away  harmlessly  a  shock  that  might 
have  stretched  iniquity  prone."1 

Undoubtedly  this  partially  accounts  for  the  superior 
efficiency  and  responsiveness  of  the  federal  administra- 
tion as  compared  with  that  of  the  average  state  or  city. 
If  one  does  not  approve  of  the  conduct  of  foreign  affairs, 

1  Social  Control,  p.  97. 


252  POPULAR  GOVERNMENT 

the  administration  of  the  public  lands,  the  enforcement 
of  federal  law,  or  the  operation  of  the  post  office,  one 
does  not  hesitate  to  apply  the  doctrine  of  strict  account- 
ability to  the  President  of  the  United  States.  If  the 
public  become  outraged  by  the  mismanagement  of  fed- 
eral affairs,  the  chief  executive  rightly  becomes  the  im- 
mediate object  of  their  attack.  It  is  not  necessary  first 
to  seek  out  from  the  mass  of  administrative  detail  the 
source  of  the  wrong  or  error;  for  the  people  have  only 
elected  one  executive  and  have  concentrated  in  his  hands 
the  complete  control  of  the  administration.  He  can  be 
held  to  just  and  effective  accountability  for  every  detail. 
The  result  is  that  in  the  federal  government,  where  the 
people  elect  only  one  man  to  executive  power,  and  one 
other  as  an  alternate,  they  become  interested  in  the  simple 
but  tremendously  important  task;  they  bring  to  bear  upon 
it  a  vigor  and  an  intelligence  that  is  lacking  in  their 
votes  upon  state  and  municipal  executives;  they  watch 
the  office  with  eagerness  and  understanding,  and  they 
have  a  conspicuous,  definite  personality  upon  whom  pub- 
lic opinion  may  effectively  pass  its  verdict  of  censure  or 
approval.  With  the  short  ballot,  public  opinion  becomes 
articulate  and  effective,  and  popular  control  an  existing 
fact.  With  the  long,  complicated  ballot,  public  opinion 
does  not  exist  in  the  great  majority  of  cases,  it  is  not 
effective  in  the  few  cases  where  it  does,  and  real  popu- 
lar government  is  little  better  than  a  myth,  except  where 
it  is  given  an  opportunity  to  function  through  the  respon- 
sibility of  political  parties. 

To  adjust  our  form  of  government  to  the  inherent 
limitations  of  public  opinion  is  merely  the  obvious  and 
necessary  way  of  making  democracy  real  and  practical. 
This  means  to  limit  the  political  activities  of  the  voter 
to  those  things  upon  which  he  may  have  an  opinion,  and 


THE  SHORT  BALLOT  253 

in  the  expression  of  which  he  will  have  an  obvious  inter- 
est. In  other  words,  the  people  must  not  be  asked  to 
elect  at  the  most  more  than  three  or  four  officers  at  any 
one  time,  these  officers  must  be  so  important  and  power- 
ful that  they  will  attract  attention,  and  the  responsibility 
must  be  so  concentrated  in  their  hands  that  the  voter  may 
easily  hold  them  accountable  for  the  results  of  govern- 
ment. With  politics  so  arranged,  public  opinion  has  a 
chance  to  function,  and  the  voters'  obligations  may  con- 
ceivably be  performed  with  intelligence  and  dispatch. 

If,  for  example,  the  people  of  a  city  elect  only  their 
member  of  the  council  and  the  mayor,  leaving  all  of  the 
administrative  officers  to  be  appointed  or  removed  by 
the  latter,  it  seems  inevitable  that  the  people  would  take 
greater  interest  in  the  election,  vote  with  much  greater 
intelligence,  and,  because  they  could  then  hold  the  mayor 
to  absolute  responsibility,  exercise  a  more  effective  con- 
trol over  the  affairs  of  the  administration.  On  the  other 
hand,  to  have  them  voting  for  twenty-five  minor  city 
officials,  of  whom  they  are  ignorant,  and  with  official 
responsibility  evaded  in  the  multiplicity  of  their  relations, 
means  nothing  more  significant  than  hopeless  confusion 
and  impotence.  And  yet  this  multiplicity  of  elective  offi- 
cers is  defended  by  many  as  indispensable  to  democracy. 

The  short  ballot  idea  also  facilitates  the  solution  of 
the  problem  presented  by  the  apparent  conflict  between 
technical  efficiency  and  popular  control.  At  a  time 
when  the  demand  for  larger  participation  in  the  affairs 
of  government  is  keeping  pace  with  the  rapidly  growing 
need  for  the  utilization  of  the  technical  expert  in  public 
administration,  this  question  becomes  one  of  vital  impor- 
tance. Temperamental  radicals,  with  a  credulous  faith 
in  the  omnipotence  of  majorities,  talk  glibly  of  direct 
democracy  as  a  panacea  for  all  our  ills.  When  informed 


254  POPULAR  GOVERNMENT 

that  the  technical  problems  of  the  public  cannot  be  solved 
by  a  "show  of  hands"  they  easily  reply  that  direct  democ- 
racy will  simplify  the  problems.  But  the  scientific  stu- 
dent knows  it  is  not  so  simple.  Democracy  must  be 
adjusted  to  meet  the  needs  of  modern  society  or  democ- 
racy will  not  endure. 

Athens  fell  partly  because  of  the  lack  of  experts.  Offi- 
cers were  selected  by  a  process  of  rotation  or  by  lot,  and 
were  ineligible  for  reelection.  Thus  the  public  was  guar- 
anteed against  the  possible  dangers  of  bureaucracy, 
complete  political  equality  was  assured,  and  the  incompe- 
tence of  mediocricy  was  fastened  upon  the  people. 
While  their  life  remained  simple  this  system  could  en- 
dure, but  when  it  came  into  conflict  with  a  highly  organ- 
ized monarchy  under  Philip  of  Macedon  it  paid  the 
inevitable  penalty  of  incompetence.  Likewise  a  similar 
amateur  system  worked  well  in  Rome,  until  they  were 
confronted  with  the  complicated  problems  of  industry, 
commerce,  and  diplomacy,  when  it  fell  of  its  own  weight, 
partly  because  of  its  inability  to  bring  expert  aid  and 
experience  to  the  solution  of  its  public  problems. 

The  recent  war  raised  the  question  as  to  whether 
democracies  could  endure  amidst  the  rivalries  and  con- 
flicts of  modern  life.  The  marvelous  power  of  Germany 
was  largely  attributed  to  its  remarkable  utilization  of 
the  expert  in  the  affairs  of  state.  Nor  does  the  winning 
of  the  war  give  a  final  solution  of  the  problem.  The 
great  nations  and  peoples  of  the  world  are  now  engaging 
in  a  tremendous  contest  for  the  trade  and  commerce  of 
the  earth.  Victory  or  defeat  in  this  great  contest  may 
be  fraught  with  as  great  significance  to  the  national  weal 
as  were  the  conflicts  fought  upon  the  battlefields  of 
France.  Whether  America  will  hold  her  own  will  de- 
pend upon  the  capacity  of  our  people  to  utilize  as  effec- 


THE  SHORT  BALLOT  255 

tive,  scientific,  and  expert  methods  as  those  used  by  the 
competing  nations.  "Whether  popular  government  will 
endure  or  not,"  declares  President  Lowell,  "depends 
upon  its  success  in  solving  its  problems,  and  among  those 
none  is  more  insistent  than  the  question  of  its  capacity 
both  to  use  and  to  control  experts,  a  question  closely 
interwoven  with  the  nature,  the  expression,  and  the  limi- 
tation of  public  opinion." 

Enough  has  been  written  in  preceding  chapters  re- 
garding the  technical  character  of  modern  problems  to 
show  the  imperative  necessity  of  expert  service  in  solving 
the  questions  of  the  day.  If  public  health  is  to  be  ade- 
quately guarded,  if  the  life  and  limb  of  the  worker  are 
to  be  protected,  if  our  systems  of  taxation  and  finances 
are  to  be  adequate  and  just,  if  the  organization  of  our 
industrial  resources  are  to  be  perfected  on  a  progressive 
and  an  efficient  basis,  if  the  distribution  of  wealth  is  to 
be  equitably  achieved — if  all  of  these  vital  problems  are 
to  be  ably  met,  we  shall  need  the  ablest  scholars  and  the 
most  efficient  experts  that  civilization  can  produce. 

This  presents  two  distinct  problems,  viz.,  what  process 
of  selection  will  secure  the  best  experts,  and  how  will 
any  connection  between  the  work  of  the  experts  and  the 
demands  of  public  opinion  be  established?  We  have  given 
sufficient  attention  in  preceding  chapters  to  the  popular 
election  of  experts  to  make  it  clear  that  such  an  election 
does  not  represent  a  true  opinion.  This,  we  have  seen, 
means  that  in  such  occasions  the  selection  is  governed 
by  chance  or  by  the  political  machine.  In  neither  of  these 
cases  have  the  results  been  of  such  a  character  as  to  jus- 
tify the  system  as  an  effective  method  of  selecting  experts. 

Another  method,  which  was  widely  employed  in  the 
early  day  of  the  Republic,  was  legislative  appointment. 
This  worked  very  badly  and  was  soon  generally  aban- 


256  POPULAR  GOVERNMENT 

doned.  "The  natural  consequence  seems  to  have  been," 
observed  Professor  Beard,  "in  nearly  every  case,  that  the 
appointing  power  passed  from  the  public  authorities  in 
which  it  was  vested  by  law  into  the  hands  of  organiza- 
tions unknown  to  the  law  and  only  slightly  or  not  at  all 
subject  to  the  pressure  of  public  opinion.  Appointment 
by  the  legislature  on  a  large  scale  was  a  new  experiment 
in  American  politics,  for  the  power  had  not  been  gener- 
ally exercised  by  colonial  legislatures;  and  it  required 
very  little  experience  to  demonstrate  that  appointment 
by  a  numerous  assembly  was  about  the  most  successful 
way  of  destroying  responsibility  that  could  have  been 
devised."1 

This  leaves  but  one  alternative  and  that  is  executive 
appointment.  Give  to  the  executive  officer  full  power 
of  appointment  and  removal,  and  then  let  the  public  hold 
him  to  strict  accountability  for  the  results  that  he 
achieves,  and  we  have  the  best  method  yet  devised,  either 
by  private  business  or  by  public  effort,  to  secure  a  high 
grade  of  technical  service,  and  yet  subordinate  it  to 
the  demands  of  public  opinion.  One  of  the  main  requi- 
sites of  a  chief  executive  is  his  capacity  to  estimate  prop- 
erly the  qualifications  of  those  available  for  the  positions 
to  be  filled.  To  be  able  to  select  wisely  from  the  list  of 
men,  to  get  a  well-balanced  personnel  for  the  perform- 
ance of  a  given  task — men  who  will  work  together  and 
cooperate  with  maximum  efficiency — to  stimulate,  direct, 
and  coordinate  their  efforts,  and  to  see  that  they  got  the 
results  that  public  opinion  is  demanding,  is  the  real  func- 
tion of  the  chief  executive  in  government.  That  this  could 
be  done  by  the  voters  directly  seems  too  absurd  to  argue. 
And  yet  it  is  not  unusual  to  see  local  and  state  elections 
where  such  methods  are  attempted. 
1  American  Government  and  Politics,  p.  92. 


THE  SHORT  BALLOT  257 

But  how  may  such  experts  be  kept  subject  to  public 
opinion?  How  may  we  keep  them  from  becoming 
bureaucratic?  How  can  we  prevent  them  from  being  the 
rulers  rather  than  the  ruled?  It  is  useless  to  ignore  this 
problem,  for  it  is  here.  There  is  nothing  in  the  nature  of 
the  expert  to  keep  him  efficient  or  responsive  and  some 
method  must  be  devised  to  protect  the  public  from  pos- 
sible abuse.  It  must  be  remembered  that  in  regard  to 
experts  and  their  service,  the  public  have  but  one  concern 
and  that  is  to  get  results.  They  do  not  care  about  what 
scientific  theories  are  employed  by  the  State  Board  of 
Health  so  long  as  they  succeed  in  banishing  disease.  They 
do  not  care  what  principles  of  accounting  employed  by 
the  auditor,  so  long  as  the  money  is  honestly,  legally, 
and  efficiently  expended  and  accounted  for.  They  are 
not  interested  in  questions  of  technical  policy  with  which 
the  state  engineer  must  deal,  so  long  as  he  gets  the  re- 
sults for  which  he  is  employed.  In  other  words,  all  that 
the  public  asks  of  its  experts  is  to  keep  the  public  point 
of  view  and  get  the  required  results.  From  what  has 
gone  before  it  seems  fairly  obvious  that  this  can  be  best 
accomplished  by  vesting  the  appointment  and  removal  of 
the  expert  in  the  executive  head  and  making  him  directly 
accountable  to  the  public.  The  executive  is  the  only  one 
competent  to  pass  upon  the  efficiency  of  the  expert,  and 
if  the  public  holds  him  accountable  for  results  secured, 
that  provides  sufficient  safeguard  against  the  abuse  of 
the  appointing  and  removing  power. 

Doubtless  it  will  be  argued  that  it  is  dangerous  to 
leave  so  much  to  the  discretion  of  the  chief  executive 
officer,  who  may  conceivably  make  mistakes  or  fail  to 
utilize  his  vast  powers  to  the  public  advantage.  It  must 
be  admitted  that  the  mere  adoption  of  the  short  ballot 
will  not  mitigate  the  evils  of  civic  indifference.  There 


258  POPULAR  GOVERNMENT 

is  nothing  in  this  device  that  is  either  automatic  or  fool 
proof.  The  political  scientist  cannot  guarantee  that  the 
people  will  use  the  instruments  of  self-government  with 
intelligence  and  devotion.  All  that  the  student  of  politics 
can  do  is  to  provide  the  voter  with  instruments  suitable 
to  his  task.  In  the  short  ballot  it  is  believed  that  the 
voter  will  find  such  an  instrument  which  he  can  use  with 
the  maximum  of  efficiency  and  the  minimum  of  effort. 
The  history  of  executive  appointments  in  local  and  state 
government,  so  far  as  it  has  been  tried,  has  given  re- 
sults that  are  not  entirely  reassuring.  Rotation  in  office 
and  political  pressure  have  weakened  the  efficiency  of  the 
system.  But  that  is  not  due  entirely  to  the  system  of 
executive  appointments.  As  compared  with  the  system 
of  popular  election  of  the  same  officials  it  has  demon- 
strated obvious  advantages.  The  real  difficulty  is  the 
lack  of  a  public  appreciation  of  the  importance  of  techni- 
cal service.  The  indifference  with  which  the  public  views 
wholesale  violations  of  the  civil  service  laws  bears  elo- 
quent testimony  to  this  fact.  Too  many  of  our  people 
are  more  concerned  with  the  methods  of  popular  election 
than  with  the  results  secured.  We  have  been  sacrificing 
substance  for  form.  If  officers  were  popularly  elected, 
or  subjected  to  the  popular  recall,  or  if  our  laws  were 
enacted  by  the  initiative  and  referendum,  we  have  been 
content,  regardless  of  the  tragic  mistakes  and  impossible 
results. 

A  great  American  statesman  has  answered  to  this 
criticism  of  direct  democracy,  that  if  democracy  makes 
mistakes  no  one  should  object,  for  democracy  has  the 
right  to  make  mistakes.  With  such  an  easy-going  phi- 
losophy of  popular  government  too  many  of  the  public 
are  in  complete  accord.  No  change  in  the  forms  of  gov- 
ernment will  remedy  this  obvious  defect.  But  when  the 


THE  SHORT  BALLOT  259 

people  do  decide  that  they  want  results,  that  they  want 
as  effective  service  in  public  business  as  prevails  in  private 
enterprise,  that  they  want  the  substance  of  democracy 
rather  than  its  empty  forms,  the  short  ballot  will  be  an 
effective  instrument  in  their  hands.  It  makes  no  demand 
upon  the  intelligence  and  energies  of  the  citizen  that 
cannot  reasonably  be  met.  It  makes  the  citizen's  point 
of  contact  with  government  specific,  definite,  and  direct. 
It  implies  tasks  that  are  within  the  range  of  the  experi- 
ence and  observation  of  the  average  voter.  It  makes  the 
process  of  checking  up  the  results  achieved  by  the  officer 
he  elects  both  interesting  and  easy.  It  confines  election 
to  that  domain  in  which  public  opinion  may  control. 
It  makes  the  government  popular  in  fact  as  well  as  in 
form. 

President  Lowell  finds  excellent  examples  of  the 
proper  relations  between  the  political  executive  and  the 
permanent  expert  in  the  fields  of  business.  "In  our  great 
private  industries  and  educational  institutions,"  he  writes, 
"the  true  relations  between  experts  and  laymen  have 
been  worked  out  and  applied.  The  president  of  a  rail- 
road and  his  subordinates  are  railroad  men  by  profes- 
sion, skilled  experts,  and  if  they  were  not,  the  road  would 
not  be  efficiently,  progressively,  or  even  safely,  conducted; 
but  the  board  of  directors  is  composed  of  bankers,  mer- 
chants, and  other  men  of  general  business  experience, 
who  make  no  pretence  to  the  technical  knowledge  re- 
quired to  manage  the  road.  In  fact,  they  represent  the 
business  public — not  by  election,  but  by  sample — and  so 
far  as  the  sample  is  not  a  fair  one,  and  therefore  the 
[directors  do  not  faithfully  represent  the  business  public, 
lthat  public,  and  ultimately  the  railroad  itself,  is  sure  to 
suffer.  In  the  same  way,  the  presidents  of  colleges  are 
experts,  and  most  certainly  the  faculties  are;  but  for 


260  POPULAR  GOVERNMENT 

boards  of  trustees  they  want,  not  professional  educa- 
tors, but  broad-minded  men  of  the  world  with  scholarly 
sympathies."1 

If  we  are  to  profit  by  the  experience  of  private  indus- 
try we  shall  only  ask  the  voter  to  select  a  competent 
administrator  and  leave  to  him  the  task  of  securing  and 
retaining  an  effective  technical  service.  Upon  his  suc- 
cess in  performing  this  task  will  depend  his  political 
future  as  from  time  to  time  he  comes  before  the  people 
for  their  approval  or  rejection  at  the  polls.  No  one 
would  think  of  asking  the  stockholders  of  the  Pennsyl- 
vania Railroad  Company  to  elect  an  auditor,  a  chief  engi- 
neer, a  division  manager,  or  a  superintendent  of  motive 
power.  This  is  not  because  the  stockholders  are  not 
the  ones  most  vitally  interested,  but  for  the  very  obvious 
reason  that  they  can  protect  their  interests  much  more 
effectively  by  attempting  to  control  only  the  directors, 
and  leaving  to  them  and  the  officers  they  select  the  de- 
tails of  administration  and  personnel.  The  same  reason- 
ing would  seem  to  apply  to  the  citizens  asked  to  elect  a 
state  engineer,  an  auditor,  and  a  statistician. 

In  considering  the  practical  application  of  the  short 
ballot,  the  question  arises  as  to  what  officers  should  the 
people  attempt  to  elect.  The  limitations  of  time  and 
space  do  not  permit  of  an  exhaustive  consideration  of 
this  question  in  relation  to  the  state  and  local  govern- 
ment. It  seems  clear  that  no  officers  except  those  that 
we  have  described  in  the  preceding  chapter  as  political 
or  quasi-political,  should  ever  be  submitted  to  popular 
election  or  removal.  In  the  federal  government,  the  lim- 
iting of  popular  election  to  the  chief  executive  and  the 
members  of  the  two  legislative  branches  has  given  excel- 
lent results.  Some  have  argued  for  the  adoption  of  the 

^Public  Opinion  and  Popular  Government,  p.  293. 


THE  SHORT  BALLOT  261 

same  plan  in  the  state  and  city,  while  some  have  gone 
still  further  and  argued  for  the  election  of  a  one  house 
legislature  in  the  city  or  state,  leaving  to  them  the  selec- 
tion of  a  chief  executive.  The  business  manager  form 
of  city  government,  which  has  enjoyed  a  rapid  growth, 
and  which  has  seemed  to  be  meeting  with  marked  success 
as  compared  with  the  older  systems,  is  an  illustration  of 
the  latter  policy. 

Perhaps  the  question  of  appointing  or  electing  judges 
raises  the  greatest  single  difficulty  in  this  connection.  In 
the  great  bulk  of  the  functions  performed  by  the  court, 
the  judges  are  technical  and  not  political  officers,  and 
the  general  principle  above  mentioned  would  mean  that 
they  should  be  appointed.  To  this  there  has  been  great 
objection.  It  has  been  urged  that  the  courts  are  political 
more  than  technical  officers,  a  contention  sufficiently  dis- 
cussed in  a  preceding  chapter.  In  addition  two  other 
reasons  for  their  popular  election  have  been  urged.  The 
first  is  that  judges,  when  appointed,  are  likely  to  become 
too  arbitrary  and  autocratic,  and  the  second  is  that  they 
are  too  likely  to  lose  touch  with  the  facts  and  conditions 
of  modern  life,  in  the  light  of  which  the  principles  of 
law  are  to  be  expounded  and  applied. 

The  first  objection  may  be  met  by  making  the  judges 
appointed  but  for  a  limited  period  rather  than  for  life 
or  good  behavior.  To  the  extent  that  there  is  any  weight 
in  this  objection  it  would  seem  to  have  to  do  with  the 
length  of  tenure  rather  than  with  the  method  of  selec- 
tion. Life  tenure  need  not  necessarily  accompany  an 
appointed  judiciary.  There  is  no  reason  why  the  tenure 
and  method  of  re-appointment  should  not  be  as  ade- 
quately safeguarded  under  the  appointive  as  under  the 
elective  system. 


262  POPULAR  GOVERNMENT 

The  second  criticism  of  the  courts  is  a  valid  and  an 
important  one.  Some  of  the  most  unfortunate  decisions 
that  have  occurred  can  be  accounted  for  on  the  ground 
that  the  court  was  too  ignorant  of  the  general  facts  and 
conditions  of  life  to  be  able  to  apply  the  principles  of 
law  with  both  precision  and  understanding.  The  case  of 
Lochner  v.  New  York,  referred  to  in  a  preceding  chap- 
ter, is  an  excellent  case  in  point.  But  the  question  may 
well  be  asked  if  the  popular  election  of  judges  will  tend 
to  secure  men  better  informed  upon  existing  economic 
and  social  conditions.  Fortunately  we  have  some  evidence 
on  this  point.  The  courts,  where  judges  have  been  ap- 
pointed rather  than  elected,  have  been  much  freer  from 
such  mistakes.  It  is  universally  admitted  that  these  judges 
have  been  more  liberal  and  progressive,  which,  being  in- 
terpreted, generally  means  that  they  were  better  informed 
upon  the  general  economic  and  social  facts  involved. 
No  state  court  has  a  better  record  in  this  respect  than 
Massachusetts,  where  judges  are  appointed  and  hold 
office  for  life  and  good  behavior.  The  courts  which 
might  be  criticized  the  most  freely  in  this  regard  have 
quite  frequently  been  those  that  have  been  elected  for 
the  shorter  terms,  and  where,  therefore,  they  might  be 
supposed  to  be  the  most  closely  in  touch  with  public 
opinion.  Those  who  advocated  the  recall  of  judicial  de- 
cisions in  1912  thought  it  would  be  unnecessary  to  apply 
the  doctrine  to  the  federal  courts,  all  the  judges  of  which 
are  appointed  and  hold  office  for  life  or  good  behavior, 
since  it  was  generally  admitted  that  their  decisions  were 
much  more  satisfactory.  It  seems  that  what  is  wanted  is 
judges  who  are  more  able,  more  judicial,  and  more 
learned,  and  the  evidence  is  overwhelmingly  to  the  effect 
that  such  are  more  likely  to  be  secured  by  executive  ap- 
pointment than  by  popular  election. 


THE  SHORT  BALLOT  263 

In  discussing  the  popular  election  of  judges  as  it  now 
exists  in  most  of  our  states,  Mr.  Albert  M.  Kales  de- 
clared that  "No  method  could  be  worse  than  that  which 
we  now  employ.  Appointment  by  the  politocrats  of  the 
extra-legal  government  is  so  obscure,  especially  when 
effected  by  primaries,  that  they  are  under  no  responsi- 
bility whatever  in  naming  judges  and  they  have  little 
interest  in  the  due  administration  of  justice.  Indeed, 
the  situation  is  worse  than  that  for  they  may  have  posi- 
tive reasons  for  wishing  a  type  of  man  from  whom  they 
may  expect  certain  courses  of  action  which  will  actually 
be  inimical  to  the  efficient  administration  of  justice,  par- 
ticularly in  criminal  causes;  or  they  may  be  interested 
in  filling  judicial  offices  with  those  who  have  done  more 
in  the  way  of  faithful  service  to  the  organization  than 
in  the  way  of  practice  in  the  courts. 

"  *  *  *  gut  thjg  much  can  be  affirmed,  that  any  mode 
of  appointment  by  the  governor,  since  it  is  conspicuous 
and  legal,  and  since  the  governor  is  directly  subject  to 
the  electorate,  carries  with  it  a  measure  of  responsibility 
which  is  not  found  where  the  appointment  is  secret  and 
by  the  politocrats  of  the  extra-legal  government.  Ap- 
pointment by  the  governor  is  better  than  the  present 
misnamed  plan  of  popular  election."1 

Another  method  of  appointment,  deserving  of  con- 
sideration, is  by  the  chief  justice,  who  in  turn  is  popu- 
larly elected,  and  who  would  be  vested  with  general  ad- 
ministrative powers  over  the  various  courts  and  judges. 
This  would  provide  for  certain  administrative  flexibility 
in  judicial  matters  that  would  open  the  way  for  some 
very  important  developments  and  reforms  in  judicial  ad- 
ministration. 

In  conclusion  we  may  well  inquire  as  to  what  will  be 
1  Unpopular  Government  in  the  U.  S.f  pp.  235,  238. 


264  POPULAR  GOVERNMENT 

the  effect  of  the  short  ballot,  first,  upon  the  character 
of  the  public  administration,  and  secondly,  upon  the  pub- 
lic and  its  relation  to  the  government?  The  first  effect 
upon  public  administration  will  be  to  attract  abler  men 
to  public  office.  The  position  of  governor  of  a  state  or 
mayor  of  a  city,  as  these  positions  generally  exist,  while 
they  offer  attractive  opportunities  to  ambitious  and  able 
politicians,  afford  little  promise  to  the  real  administrators 
|  and  executives  of  the  land.  One  of  real  executive  ability 
will  not  ordinarily  accept  a  position  as  head  of  an  admin- 
istrative system,  when  the  most  important  departmental 
heads  hold  their  offices  through  popular  elections  and 
absolutely  independently  of  his  wishes  or  authority.  Yet 
such  is  the  situation  in  almost  every  state  and  in  the  great 
majority  of  cities.  Nominally,  the  governor  is  chief 
of  the  administration,  but  the  heads  of  most  of  the  im- 
portant administrative  departments  are  entirely  indepen- 
dent of  his  authority.  His  greatest  importance,  therefore, 
is  in  his  position  as  party  leader  and  his  relations  to  the 
legislature,  which  are  governed  by  political  rather  than 
administrative  considerations.  It  is  not  surprising,  there- 
fore, that  such  positions  have  not  frequently  attracted 
men  of  great  administrative  talents.  But  with  the  inaugu- 
ration of  the  short  ballot,  such  positions  will  offer  tre- 
mendous opportunities  for  administrative  careers  and 
will  appeal,  accordingly,  to  those  of  large  administrative 
abilities  and  experience. 

Likewise,  the  public  service  will  attract  a  better  type 
of  technical  experts.  A  man  of  fine  professional  attain- 
ments and  scholarly  instincts  will  not  be  attracted  to 
public  service,  where  his  tenure  will  be  subject  to  the 
accidents  of  party  politics.  But  public  service,  under  the 
supervision  and  authority  of  experienced  executives, 


THE  SHORT  BALLOT  265 

which  will  mean  that  tenure  of  office  and  rapidity  of 
advancement  will  be  determined  by  the  efficiency  of  the 
expert,  offers  a  very  attractive  opportunity  to  the  very 
best  men  of  professional  and  technical  training. 

The  second  effect  upon  the  public  administration  is 
that  it  will  become  more  amenable  to  popular  control. 
It  has  been  argued  by  the  opponents  of  the  short  ballot 
that  the  very  opposite  will  be  the  result.  They  contend 
that  to  give  so  much  appointing  power  into  the  hands 
of  a  single  executive  will  enable  him  to  erect  a  political 
machine,  with  which  he  will  be  enabled  to  defy  the  pub- 
lic. But  this  objection  ignores  two  fundamental  facts. 
The  first  is  that  the  chief  executive,  regardless  of  his 
machine,  cannot  continue  himself  in  power  in  opposition 
to  the  public.  He  is  to  be  elected  by  the  people,  and  will 
come  up  at  periodic  intervals  at  the  expiration  of  his  offi- 
cial term  for  reelection  or  defeat.  The  public  can  exact 
what  they  will  as  the  price  of  their  support.  The  execu- 
tive must  give  them  what  they  demand  or  be  retired  from 
power.  If  the  people  demand  results  as  the  condition  of 
their  support,  the  securing  of  those  results  will  become 
his  chief  concern.  If  they  are  content,  however,  for  him 
to  abuse  the  power  in  erecting  a  personal  machine  at 
the  sacrifice  of  efficient  service,  and  they  will  continue 
such  a  man  in  authority,  there  is  nothing  in  the  short 
ballot  to  prevent  it.  In  fact,  if  the  short  ballot  is  effec- 
tive at  all,  it  will  make  it  easier  for  the  people  to  get 
just  what  they  want,  whether  it  be  efficiency  or  graft. 

The  second  fact,  ignored  by  those  who  fear  the  short 
ballot  will  produce  a  political  machine,  is  that  the  long 
ballot  has  been  the  most  effective  single  cause  for  the 
growth  and  power  of  the  professional  politician.  The 
impossibilities  of  the  long  ballot  made  the  voter  depen- 
dent upon  political  experts  for  advice  and  guidance,  and 


266  POPULAR  GOVERNMENT 

the  party  boss  came  in  to  provide  the  needed  counsel. 
Under  the  present  system  the  people  cannot  get  along 
without  the  boss,  even  though  they  would.  At  present 
these  so-called  experts  are  selected  by  the  party  organi- 
zation, and  the  degree  of  popular  control  that  does  exist 
at  present,  depends  entirely  upon  the  degree  of  party 
responsibility  that  has  survived  the  inauguration  of  the 
primary  legislation  in  the  several  states.  But  with  the 
short  ballot,  the  voter  will  be  no  longer  so  completely 
dependent  upon  the  boss,  and  may,  if  he  desires,  dispense 
largely  with  his  services,  select  a  good  executive  them- 
selves, and  hold  him  directly  responsible  for  the  things 
they  want  accomplished.  It  is  a  choice  between  leaving 
the  appointment  of  these  officers  fo  the  discretion  of  the 
party  boss,  where  the  fixing  of  responsibility  is  difficult 
and  hazardous,  or  giving  the  power  to  the  chief  execu- 
tive whose  responsibility  is  definite,  fixed,  and  certain. 
The  interests  of  both  popular  control  and  efficient  ad- 
ministration demand  the  latter. 

The  effects  of  the  short  ballot  upon  the  public  and  its 
relations  to  government  would  seem  to  be  fourfold.  In 
the  first  place  it  will  intensify  the  interest  of  the  voter  in 
the  election  by  making  it  dramatically  important.  When 
one  realizes  that  the  whole  administration  depends  upon 
the  one  official,  that  the  fate  of  efficient  government  de- 
pends upon  the  one  "turn  of  the  balance,"  keener  interest 
in  that  one  event  is  bound  to  follow.  Secondly,  it  makes 
the  public's  intelligent  participation  in  government  much 
simpler  and  easier.  If  the  voter  is  eager  for  beneficent  re- 
sults from  the  efforts  of  government,  but  in  order  to 
secure  them  has  to  lock  up  the  records  of  candidates  for 
forty-seven  different  offices,  and  follow  them  and  their 
achievement  through  the  intricacies  of  decentralized 
organization,  it  will  be  nothing  short  of  marvelous  if  his 


THE  SHORT  BALLOT  267 

interest  is  of  sufficient  magnitude  to  sustain  him  to  the 
end  of  his  difficult  and  almost  impossible  task.  But  if 
the  same  results  may  be  secured  by  reviewing  the  records 
of  only  one  executive,  whose  prominence  and  importance 
have  brought  him  continually  before  the  public  gaze,  and 
where  his  responsibility  is  fixed  and  definite,  both  the 
interest  and  ease  of  the  voter's  undertaking  have  been 
conspicuously  increased.  With  a  natural  stimulus  in  inter- 
est working  at  one  end  of  the  proposition  and  a  greater 
ease  of  participation  secured  at  the  other  end,  an  in- 
creased civic  activity  must  inevitably  result. 

Thirdly,  the  short  ballot  relieves  the  public  of  its 
necessary  and  complete  dependence  upon  the  activities 
of  the  politician  and  the  boss.  Political  duties  will  be  so 
simplified  and  the  ease  of  their  performance  so  increased, 
that  only  the  grossest  popular  indifference  will  make 
necessary  the  present  activities  of  the  political  machine. 
Finally,  this  movement  will  tend  to  concentrate  the  in- 
terest of  the  public  upon  substance  rather  than  form. 
It  will  tend  to  fasten  attention  upon  the  results  rather 
than  the  politics  of  government.  It  will  tend  to  empha- 
size the  important  fact  that  the  test  of  government  is  to 
be  found  in  the  actual  results  that  it  achieves  rather 
than  in  the  theories  that  it  represents.  So  long  as  the 
public  is  interested  primarily  in  political  theory,  the 
politician  and  the  demagogue  need  have  but  little  fear. 
Their  lip  service  to  the  ideals  and  aspirations  of  democ- 
racy leaves  nothing  to  be  desired.  Such  issues  do  no  more 
than  provide  the  necessary  smoke  screens  behind  which 
the  corrupt  boss  may  ply  his  dishonest  trade.  But  let 
the  people  learn  that  it  is  results  that  they  desire !  Let 
them  leave  the  theories  to  their  philosophers  but  demand 
the  actual  relief  from  existing  evils!  Let  the  people  once 
learn  to  apply  the  same  standard  to  governmental  af- 


268  POPULAR  GOVERNMENT, 

fairs  that  they  apply  to  private  enterprise,  and  demand 
that  the  government  achieve  results,  and  the  rule  of  the 
demagogue  and  charlatan  will  tend  to  disappear.  Meas- 
ured by  such  a  standard  they  cannot  survive  the  public 
scrutiny.  The  advent  of  the  short  ballot  will  help  to 
emphasize  this  important  point  of  view.  Its  emphasis 
is  necessarily  upon  results,  rather  than  methods  and  de- 
tails. Its  chief  concern  is  not  with  the  forms  of  demo- 
cratic organization,  but  with  the  realities  of  real  achieve- 
ment and  of  popular  control. 

According  to  President  Hadley,  "The  American  peo- 
ple has  made  some  progress  toward  learning  this  lesson. 
We  no  longer  entrust  politicians  with  the  command  of 
armies,  as  was  so  frequently  done  in  Athens  or  Rome. 
A  proposal  to  take  the  conduct  of  the  army  in  the  field 
out  of  the  hands  of  army  officers  and  put  it  into  the  hands 
of  members  of  Congress,  which  was  seriously  urged  in 
1848,  would  seem  quite  laughable  today.  But  we  need 
to  carry  the  lesson  further  in  the  next  century  than  we 
have  in  the  last.  We  are  in  more  immediate  competition 
with  Europe  now  than  we  were  fifty  years  ago.  To  keep 
our  place  in  this  competitive  struggle,  we  must  prove 
that  a  democracy  can  manage  business  as  well  as  a 
monarchy;  that  it  can  show  the  same  care  in  the  selection 
of  officials  and  the  same  self-restraint  in  judging  of  their 
work  before  it  is  done.  The  people  as  a  whole  must 
assume  the  double  duty  of  voting  intelligently  on  mat- 
ters which  public  opinion  can  decide  and  leaving  to  the 
specialist  matters  which  can  only  be  decided  by  the 
specialist;  of  holding  the  expert  responsible  for  results 
and  promoting  the  man  who  has  done  business  well  rather 
than  the  one  who  flatters  the  people  that  he  is  going  to 
do  business  in  a  way  that  they  will  like  and  understand. 


THE  SHORT  BALLOT  269 

Thus,  and  thus  only,  can  we  combine  two  things  which 
are  equally  essential  to  American  democracy  if  it  is  to 
hold  its  place  among  the  nations:  popular  sovereignty 
and  efficient  government."1 

1  Undercurrents  in  American  Politics,  pp.  176-7. 


SUGGESTIVE  QUESTIONS  FOR 

CHAPTER  X 

I.  There   are   eighteen  possible   candidates   for   the 
vacancy  in  the  office  of  city  bacteriologist.     Suggest  the 
two  best  methods  of  selecting  a  man  for  the  vacancy. 
Which  do  you  prefer? 

II.  There  are  seven  possible  candidates  for  the  office 
of  state  statistician.    Suggest  the  two  best  methods  of 
selecting  a  man  for  the  vacancy.   Which  do  you  prefer? 
What  would  be  the  best  method  of  removal? 

III.  Suppose  Question  II  referred  to  the  state  audi- 
tor, would  your  answer  be  the  same  ? 

IV.  Would  your  answer  to  Question  II  be  the  same 
if  it  referred  to  the  office  of  attorney  general? 

V.  If  the  members  of  the   cabinet   of  the  United 
States  were  popularly  elected,  what  effect  would  it  likely 
have  upon  the  character  of  men  in  the  cabinet? 

VI.  What  effect  would  it  likely  have  upon  type  of 
men  attracted  to  the  presidency?   What  effect  would  it 
have  upon  nominating  methods? 

%/  VII.  Is  it  ever  possible  to  have  a  public  opinion  upon 
the  public  service  of  a  technical  expert?  If  so,  how  can 
it  be  best  expressed? 

VIII.  It  is  said  that  the  short  ballot  would  so  concen- 
trate power  in  the  hands  of  the  governor  that  he  could 
build  up  a  machine  and  defeat  public  opinion.  Criticize. 
Has  this  been  true  in  the  case  of  the  federal  government? 

7  IX.  Is  a  public  opinion  possible  upon  the  general 
question  of  efficient  administration?  How  can  that  opin- 
ion be  most  effectively  expressed? 

J  X.  What  would  be  the  effect  of  the  short  ballot  upon 
the  voter? 

270 


BIBLIOGRAPHY 

CHAPTER  I 
POPULAR  OPINION  AND  POPULAR  GOVERNMENT 

L  Origin  and  Purpose  of  Government. 

Garner,  J.  W.,  Introduction  to  Political  Science,  chap.  IV.  pp. 
235-236  (American  Book,  N.  Y.,  1910). 

Cleveland,  F.  A.,  Organized  Democracy,  chap.  I,  pp.  1-23  (Long- 
mans, Green,  N.  Y.,  1913). 

Dealey,  J.  Q.,  The  Development  of  the  State,  chaps.  I,  II, 
(Silver,  Burdett,  N.  Y.,  1909). 

II.  Nature  and  Purpose  of  Democracy. 

Garner,  J.  W.,  Introduction  to  Political  Science,  pp.  219-230 
(American  Book,  N.  Y.,  1910). 

Hart,  A.  B.,  "Growth  of  American  Theories  of  Popular  Gov- 
ernment" in  Am.  Pol.  Sci.  R.,  Vol.  1,  pp.  531-60. 

Hadley,  Arthur  T.,  Undercurrents  in  American  Politics,  Lecture 
I  (Yale  Univ.  Press,  New  Haven,  1915). 

Post,  Louis  F.,  Ethics  of  Democracy,  Introduction  (Bobbs,  Mer- 
rill, Indianapolis,  1916). 

III.  Public  Opinion. 

Lowell,  A.  L.,  Public  Opinion  and  Popular  Government,  chaps. 

I-IV   (Longmans,  Green,  N.  Y.,  1913). 
Cooley,  C.  H.,  Social  Organization,  chaps.  XII,  XIII   (Scrib- 

ners,  N.  Y.,  1912). 

Ross,  E.  A.,  Social  Control,  chap.  X  (Macmillan,  N.  Y.,  1910). 
Ross,  E.  A.,  Social  Psychology,  chap.  XXII  (Macmillan,  N.  Y., 

Ellwood,  C.  A.,  Sociology  in  Its  Psychological  Aspects,    chap. 

XV  (Appleton,  N.  Y.,  1912). 
Wallas,  Graham,  Human  Nature  in  Politics,  Pt.  I,  chaps.  I-V 

(Houghfflin,  Boston,  1919). 
Hadley,  A.  T.,  "Organization  of  Public  Opinion"  in  No.  Am., 

Vol.  201,  pp.  191-6. 
Shepard,  W.  J.,  "Public  Opinion"  in  Am.  J.  Soc.t  Vol.  15,  pp. 

Kittle,  W.,  "The  Making  of  Public  Opinion"  in  Arena,  Vol.  41, 

pp.  433-50. 
Stead,  W.  T.,  "Government  by  Journalism"  in  Contemp.,  Vol.  49, 

pp.  653-74. 
Lawrence,  David,  "Government  by  Impression"  in  Century,  Vol. 

96,  pp.  117-23. 


272  POPULAR  GOVERNMENT 

CHAPTER  II 
IMPROVEMENT  OF  PUBLIC  OPINION 

I.  The  Press. 

Holt,  H.,  Commercialism  and   Journalism    (Houghton,  Mifflin, 

Boston,  1909). 
Scott,  James  R.  A.,  Influence  of  the  Press  (Partridge,  London, 

1913). 
In  Thorpe,  M.,   The  Coming  Newspaper   (Holt,  N.  Y.,  1915), 

see: 

O'Hara,  B.,  "State  License  for  Newspaper  Men,"  pp.  148-162. 
Bullen,  P.   S.,  "English   Substitute   for  the  License   Plan,"  pp. 

162-171. 

Lee,  J.  M.,  "Code  of  Ethics  for  Newspaper  Men,"  pp.  171-188. 
Howard,   R.  W.,  "Government   Regulation   for   Press  Associa- 
tion," pp.  188-205. 
Judge,  M.  H.,  "Should  Not  the  Publishing  of  False  News  Be  by 

Law  a  Misdemeanor?"  in  IVestm.,  Vol.  166,  pp.  617-18. 
"Function  of  an  Endowed  Press"  in  Nation,  Vol.  82,  pp.  49-50. 
"Endowing  Newspapers"  in  Nation,  Vol.  107,  pp.  60-1. 
"Advertising  and  the  Press"  in  Nation,  Vol.  108,  pp.  1000-1. 
Pennypacker,  S.  W.,  "Sensational  Journalism  and  the  Remedy" 

in  No.  Am.,  Vol.  190,  pp.  587-93. 

II.  Political  Parties. 

Gettell,  R.  G.,  Readings  in  Political  Science,  pp.  401-23  (Ginn, 

N.  Y.,  1911). 
Beard,  C.  A.,  American  Government  and  Politics,  3rd  ed.,  pp. 

99-125  (Macmillan,  N.  Y.,  1920). 
Munro,  W.  B.,   Government  of  American   Cities,  3rd  ed.,  pp. 

153-79  (Macmillan,  N.  Y.,  1912). 

Fess,  S.  D.,  The  History  of  Political  Theory  and  Party  Organ- 
isation in  the  United  States,  chap.  I  (Ginn,  N.  Y.,  1910). 
Cleveland,  F.  A.,    Organised    Democracy,  chaps.  XVIII,  XIX 

(Longmans,  Green,  N.  Y.,  1913). 
Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 

Politics,  Rev.  ed.,  pp.  3-13  (Scribners,  N.  Y.,  1917). 
Jones,   C.   L.,    Readings    on    Parties    and    Elections,   pp.   3-37 

(Macmillan,  N.  Y.,  1916). 

Macy,  J.,  Party  Organisation  and  Machinery,  pp.  3-24    (Cen- 
tury, N.  Y.,  1912). 
Ostrogorski,  M.,  Democracy  and  the  Party  System  in  the  United 

States,  pp.  364-421   (Macmillan,  N.  Y.,  1910). 
McLaughlin,  A.  C.,   The  Courts,  the   Constitution  and  Parties, 

pp.  111-185  (Univ.  of  Chicago  Press,  Chicago,  1912). 
Woodburn,  J.  A.,  American  Politics,  Political  Parties  and  Party 

Problems  in  the  United  States,  2d  ed.,  pp.  295-303   (Putnam, 

N.  Y.,  1916). 
DeTocqueville,  A.,  Democracy  in  America,  Vol.   1,  pp.  221-229 

(Sever  and  Francis,  Cambridge,  1864).  Tr.  by  Henry  Reeve; 

ed.  with  notes  by  Francis  Bowen. 
Ford,  H.  J.,  Rise  and  Growth  of  American  Politics,  pp.  294-310 

(Macmillan,  N.  Y.,  1898). 
Sloane,  W.  M.,  Party  Government  in  the  United  States,  chap. 

I  (Harper,  N.  Y.,  1914). 


BIBLIOGRAPHY  273 

III.  Education. 

Baldwin,  Simeon  E.,  The  Relations  of  Education  to  Citizenship 
(Yale  Univ.  Press,  New  Haven,  1912). 

Brewer,  David  J.,  American  Citizenship,  chaps.  I,  III,  V  (Yale 
Univ.  Press,  New  Haven,  1911). 

Bryce,  James,  The  Hindrances  to  Good  Citizenship  (Yale 
Univ.  Press,  New  Haven,  1910). 

Hadley,  Arthur  T.,  The  Education  of  the  American  Citizen 
(Yale  Univ.  Press,  New  Haven,  1914). 

Folk,  J.  W.,  "The  Responsibility  of  Citizenship"  in  Vanderbilt 
University  Quarterly,  Vol.  5,  pp.  155-61). 

Inglis,  Alexander,  Principles  of  Secondary  Education  (Hough- 
ton,  Mifflin,  Boston,  1918). 

Thaler,  W.  H.,  "On  Education  and  the  New  Democracy"  in 
Educa.  R.,  Vol.  59,  pp.  12-18. 

Snedden,  D.,  "Some  New  Problems  in  Education  for  Citizen- 
ship" in  Int.  J.  Ethics,  Vol.  30,  pp.  1-15. 

Hall,  A.  B.,  Dynamic    Americanism    (Bobbs,  Merrill,  Indian- 
apolis, 1920). 
IV.  The  Citizen  and  Democracy. 

Rowe,  L.  S.,  "The  Relation  of  Municipal  Government  to  Amer- 
ican Democratic  Ideals"  in  Am.  J.  Soc.,  Vol.  2,  pp.  75-84. 

Godkin,  Edwin  L.,  Problems  of  Modern  Democracy,  pp.  275- 
311  (Scribners,  N.  Y.,  1896). 

Hughes,  Charles  Evans,  Conditions  of  Progress  in  Democratic 
Government,  Lecture  I  (Yale  Univ.  Press,  New  Haven, 
1910). 

Root,  Elihu,  The  Citizen's  Part  in  Government  (Yale  Univ. 
Press,  New  Haven,  1916). 

Cleveland,  F.  A.,  Organized  Democracy,  chaps.  VII-IX  (Long- 
mans, Green,  N.  Y.,  1913). 

CHAPTER  III 

REPRESENTATIVE  GOVERNMENT  AND  DIRECT  DEMOCRACY 
I.  Representative  Government. 

Garner,   J.   W.,  Introduction   to  Political  Science,  pp.   458-488 

(American  Book,  N.  Y.,  1910). 
Leupp,  F.  E.,  "Do  Our  Representatives  Represent?"  in  Atlantic, 

Vol.  114,  pp.  433-43. 
Buchan,  J.,    "Democracy    and    Representative    Government"    in 

Fortn.,  Vol.  100,  pp.  858-69. 
Lowell,  A.  L.,  "Expert  Administrators  in  Popular  Government" 

in  Am.  Pol.  Sci.  R.,  Vol.  7,  pp.  45-62. 
Cleveland,  F.  A.,  Organized  Democracy,  chap.  VI   (Longmans, 

Green,  N.  Y.,  1913). 
Reed,  T.  H.,  Government  for  the  People,  chap.  II    (Huebsch, 

N.  Y.,  1915). 
Wallas,  Graham,  Human  Nature  in  Politics,  Pt.  II,  chaps.  II, 

III    (Houghton,   Mifflin,  Boston,    1919). 
Taft,   W.   H.,   Popular   Government,   chaps.    I-V    (Yale   Univ. 

Press,  New  Haven,  1913). 
Lowell,  A.  L.,  Public  Opinion  and  Popular  Government,  chaps. 

IX,  X,  XVI   (Longmans,  Green,  N.  Y.,  1913). 
Mill,   John   Stuart,    Utilitarianism,   Liberty   and   Representative 

Government  (Dutton,  N.  Y.,  1914). 


274  POPULAR  GOVERNMENT 

CHAPTER  IV 
THE  DIRECT  PRIMARY  AND  THE  STATE  NOMINATING  CONVENTION 

I.  Necessity  and  Function  of  Political  Parties. 

Gettell,  R.  G.,  Readings  in  Political  Science,  pp.  401-23   (Ginn, 

N.  Y.,  1911). 
Beard,  C.  A.,  American  Government  and  Politics,  3rd  ed.,  pp. 

99-125  (Macmillan,  N.  Y.,  1910). 
Munro,  W.  B.,   Government  of  American  Cities,  3rd  ed.,  pp. 

153-79   (Macmillan,  N.  Y.,  1920). 

Fess,  S.  D.,  The  History  of  Political  Theory  and  Party  Organi- 
zation in  the  United  States,  chap.  I  (Ginn,  N.  Y.,  1910). 
Cleveland,   F.    A.,    Organized   Democracy,  chaps.  XVIII,  XIX 

(Longmans,  Green,  N.  Y.,  1913). 
II.  Machines  and  Bosses. 

Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 

Politics,  Rev.  ed.,  pp.  433-458  (Scribners,  N.  Y.,  1917). 
Ostrogorski,  M.,  Democracy  and  the  Party  System  in  the  United 

States,  pp.  225-281   (Macmillan,  N.  Y.,  1910). 
Ford,    H.    J.,   Rise   and    Growth    of   American   Politics,    chap. 

XXIV   (Macmillan,  N.  Y.,  1898). 

Goodnow,  F.  J.,  Politics  and  Administration,  chap.  VIII   (Mac- 
millan, N.  Y.,  1900). 
Lowell,  F.  C.,  "The  American  Boss"  in  Atlantic,  Vol.  86,  pp. 

289-99. 
Woodburn,  J.  A.,  American  Politics,  Political  Parties  and  Party 

Problems  in  the  United  States,  2d  ed.,  chap.  XVII   (Putnam, 

N.  Y.,  1916). 
Hendrick,  B.  J.,  "The  Twilight  of  Tammany  Hall"  in  World's 

Work,  Vol.  27,  pp.  432-40. 
"The  Larger  Hope  Against  Tammany"   in   Century,   Vol.   85, 

pp.  951-2. 
III.  Machine  Methods  and  Their  Remedies. 

Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 

Politics,  Rev.  ed.,  pp.  458-481    (Scribners,  N.  Y.,  1917). 
Jones,  C.   L.,  Readings   on  Parties  and  Elections,  pp.   274-298 

(Macmillan,  N.  Y.,  1916). 
Ostrogorski,  M.,  Democracy  and  the  Party  System  in  the  United 

States,  pp.  330-363  (Macmillan,  N.  Y.,  1910). 
Woodruff,  C.  R.,  "Graft  and   Grafting:   What  Are  the  Rem- 
edies?" in  Am.  L  Soc.t  Vol.  19,  pp.  468-79. 
Root,  Elihu,  "Invisible  Government"  in  R.  of  R.,  Vol.  52,  pp. 

465-7. 
Bryce,   James,   American     Commonwealth,   Vol.    2,    pp.   87-96 

(Macmillan,  N.  Y.,  1910). 
Porritt,  E.,  "Political  Corruption  in  England"  in  No.  Am..  Vol. 

183,  pp.  995-1004. 
IV.  Nominating  Methods — The  Caucus. 

Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 

Politics,  Rev.  ed.,  chap.  IV  (Scribners,  N.  Y.,  1917). 
Jones,   C.   L.,   Readings   on   Parties    and    Elections,   pp.   37-52 

(Macmillan,  N.  Y.,  1916). 
Ostrogorski,  M.,  Democracy  and  the  Party  System  in  the  United 

States,  pp.  3-15   (Macmillan,  N.  Y.,  1910). 
Woodburn,  J.  A.,  American  Politics,  Political  Parties  and  Party 


BIBLIOGRAPHY  275 

Problems  in  the  United  States,  2d  ed.,  pp.  165-174  (Putnam, 

N.  Y.,  1916). 
Dallinger,  F.  W.,  Nominations  for  Elective  Office  in  the  United 

States,  pp.  3-21   (Longmans,  Green,  N.  Y.,  1897). 
Meyer,   E.   C,   Nominating   Systems,   chap.   I    (E.   C.   Meyer, 

Madison,  Wis.,  1902). 
Cleveland,  F.  A.,  Organised  Democracy,  chap.  XV  (Longmans, 

Green,  N.  Y.,  1913). 
Beard,  C.  A.,  Readings  in  American  Government  and  Politics, 

pp.  112-118  (Macmillan,  N.  Y.,  1913). 

V.  Nominating  Methods — The  Convention. 

Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 

Politics,  Rev.  ed.,  chap.  V  (Scribners,  N.  Y.,  1917). 
Jones,   C.    L.,   Readings   on  Parties   and   Elections,   pp.    53-66 

(Macmillan,  N.  Y.,  1916). 
Ostrogorski,  M.,  Democracy  and  the  Party  System  in  the  United 

States,  pp.  16-71   (Macmillan,  N.  Y.,  1910). 
Dallinger,  F.  W.,  Nominations  for  Elective  Office  in  the  United 

States,  pp.  21-36  (Longmans,  Green,  N.  Y.,  1897). 
Cleveland,  F.  A.,  Organised  Democracy,  chap.  XV  (Longmans, 

Green,  N.  Y.,  1913). 
Meyer,  E.  C.,  Nominating  Systems,  chaps.  IV,  V  (E.  C.  Meyer, 

Madison,  Wis.,  1902). 
Beard,  C.  A.,  Readings  in  American  Government  and  Politics, 

pp.  119-125  (Macmillan,  N.  Y.,  1913). 

VI.  Nominating  Methods — The  Direct  Primary. 

Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 

Politics,  Rev.  ed.,  chap.  VI  (Scribners,  N.  Y.,  1917). 
Jones,   C.   L.,   Readings   on   Parties   and  Elections,   pp.   67-79 

(Macmillan,  N.  Y.,  1916). 

Merriam,  C.  E.,  Primary  Elections,  pp.  117-176  (Univ.  of  Chi- 
cago Press,  Chicago,  1908). 
Fanning,  C.  E.,  Selected  Articles  on  Direct  Primaries,  4th  ed. 

(H.  W.  Wilson,  White  Plains,  N.  Y.,  1918). 
Woodburn,  J.  A.,  American  Politics,  Political  Parties  and  Party 

Problems  in  the  United  States,  2d  ed.,  chap.  XX    (Putnam, 

N.  Y.,  1916). 
Ford,  H.  J.,  "The  Direct  Primary"  in  No.  Am.,  Vol.  190,  pp. 

1-14. 
Woolen,  Evans,  "The  Direct  Primary  Experiment"  in  Atlantic, 

Vol.  110,  pp.  41-5. 
Miller,  J.  D.,  "The  Failure  of  the  Primary"  in  Forum,  Vol.  50, 

pp.  48-58. 
"Recent  Experiments  with  the  Primary"  in  World's  Work,  Vol. 

33,  p.  7. 
Papers  and  addresses  on   primary   reform   read  at  the  annual 

meeting  of  the  Michigan  Political  Science  Association,  Ann 

Arbor,  1905.     (Publication  of  the  Mich.  Pol.  Sci.  Ass.,  Vol. 

VI,  No.  1.) 
Reinsch,  Paul  S.,  Readings  on  American  State  Government,  pp. 

383-394,  414  (Girai,  N.  Y.,  1911). 
Cleveland,    F.    A.,    Organised     Democracy,     chaps.    XV-XVII 

(Longmans,  Green,  N.  Y.,  1913). 
Cross,  Ira,  "Direct  Primaries"  in  Arena,  Vol.  35,  pp.  587-90. 


276  POPULAR  GOVERNMENT 

Brickner,  Isaac   M.,   "Direct   Primaries  versus  Boss   Rule"   in 

Arena,  Vol.  41,  pp.  550-6. 
Woodruff,  C.  R.,  "Nomination  Reform  in  America"  in  Forum, 

Vol.  42,  pp.  483-505. 

"The  Primary  No  Cure  All/'  in  Nation,  Vol.  87,  pp.  131-2. 
Shaw,  W.  B.,  "Direct  Primary  on  Trial"  in  Outlook,  Vol.  90, 

pp.  383-9. 
Binkerd,  R.   S.,  "Doom  of  the  Old   'Machine'   Convention"   in 

R.  of  R.,  Vol.  41,  pp.  497-9. 
Blair,  E.   N.,  "Every   Man   His   Own   Campaign  Manager"   in 

Outlook,  Vol.  97,  pp.  426-33. 
Merriam,  C.  E.,  Primary  Elections   (Univ.  of  Chicago  Press, 

Chicago,  1908). 
Meyer,   E.   C.,   Nominating   Systems,   Direct  Primaries  versus 

Conventions  in   the    United  States    (E.   C.   Meyer,   Madison, 

Wis.,  1902). 
Remsen,  Daniel  S.,  Primary  Elections  (Putnam,  N.  Y.,  1894). 

CHAPTER  V 
THE  PRESIDENTIAL  PRIMARY 

I.  The  National  Convention — Composition  and  Call. 

Jones,    C.    L.,    Readings   on   Parties   and   Elections,   pp.    80-88 

(Macmillan,  N.  Y.,  1916). 
Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 

Politics,  Rev.  ed.,  pp.  203-211  (Scribners,  N.  Y.,  1917). 
Ostrogorski,  M.,  Democracy  and  the  Party  System  in  the  United 

States,  pp.  133-146  (Macmillan,  N.  Y.,  1910). 
Woodburn,  J.  A.,  American  Politics,  Political  Parties  and  Party 

Problems  in  the  United  States,  chap.  X  (Putnam,  N.  Y.,  1916). 
Dallinger,  F.  W.,  Nominations  for  Elective  Office  in  the  United 

States,  pp.  74-84  (Longmans,  Green,  N.  Y.,  -1897). 
Bryce,  James,   The    American    Commonwealth,    Vol.  2,    chap. 

LXIX  (Macmillan,  N.  Y.,  1910).  _ 

Bishop,  J.  B.,  Presidential  Nominations  and  Elections   (Scrib- 
ners, N.  Y.,  1916). 
Macy,    Jesse,    Party    Organisation    and    Machinery,  chap.   VI 

(Century,  N.  Y.,  1912). 
Blythe,  Samuel,  "The   Same  Old  Game"  in  Saturday  Evening 

Post,  March  20,  1920. 

II.  The  Work  of  the  National  Convention. 

Jones,   C.   L.,   Readings   on   Parties  and  Elections,   pp.   89-106 

(Macmillan,  N.  Y.,  1916). 
Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 

Politics,  Rev.  ed.,  pp.  211-220  (Scribners,  N.  Y.,  1917). 
Ostrogorski,  M.,  Democracy  and  the  Party  System  in  the  United 

States,  pp.  147-160  (Macmillan,  N.  Y.,  1910). 
Woodburn,  J.  A.,  American  Politics,  Political  Parti-es  and  Party 

Problems  in  the   United  States,  chap.  XII    (Putnam,  N.  Y., 

1916). 
Bryce,    James,    The    American    Commonwealth,    chap.    LXX 

(Macmillan,  N.  Y.,  1910). 

Bishop,  J.  B.,  Presidential  Nominations  and  Elections    (Scrib- 
ners, N.  Y.,  1916). 


BIBLIOGRAPHY  277 

Harvey,    George,    "The    National    Conventions,"    in   No.    Am., 
Vol.  204,  pp.  1-13. 

III.  Presidential   Nomination — Convention  v.   Presidential   Primary. 

Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 

Politics,  Rev.  ed.,  pp.  190-203   (Scribners,  N.  Y.,  1917). 
Aylsworth,  L.  E.,  "Presidential  Primary  Elections"  in  Am.  Pol. 

Sci.  R.,  Vol.  6,  pp.  429-33. 
Dickey,  F.  W.,  "The  Presidential  Preference  Primary"  in  Am. 

Pol.  Sci.  R.f  Vol.  9,  pp.  467-87. 
Barnett,  J.  D.,  "Presidential  Primary  in  Oregon"  in  Pol.  Sci. 

Q.t  Vol.  31,  pp.  81-104. 
Holcombe,  J.  W.,  "The  Electoral  College"  in  Forum,  Vol.  48, 

pp.  526-34. 
Holcombe,  J.   W.,   "A   Presidential   Preference  Vote  and  the 

Electoral  College"  in  Forum,  Vol.  48,  pp.  681-6. 
Rosewater,  V.,  "President-Choosing"  in  R.  of  R.t  Vol.  34,  pp. 

333-6. 
Potts,  C.   S.,  "The  Convention    System    and    the    Presidential 

Primary"  in  R.  of  R.,  Vol.  45,  pp.  561-6. 
Laprade,  W.  T.,  "The  Nominating  Primary"  in  No.  Am.,  Vol. 

200,  pp.  235-43. 
Davenport,  F.  M.,  "The  Failure  of  the  Presidential  Primary" 

in  Outlook,  Vol.  112,  pp.  807-10. 

IV.  Election  of   President. 

Jones,   C.  L.,  Readings  on  Parties  and  Elections,  pp.   106-124 

(Macmillan,  N.  Y.,  1916). 
Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 

Politics,  Rev.  ed.,  pp.  182-184   (Scribners,  N.  Y.,  1917). 
Ostrogorski,   M.,  Democracy  and    the    Party    System    in    the 

United  States,  chaps.  IX,  X   (Macmillan,  N.  Y.,  1910). 
Woodburn,  J.  A.,  American  Politics,  Political  Parties  and  Party 

Problems  in  the  United  States,  pp.  197-218  (Putnam,  N.  Y., 

1916). 
Dougherty,  J.  H.,  The  Electoral  System  of  the  United  States 

(Putnam,  N.  Y.,  1906). 
Bryce,  James,    The    American    Commonwealth,    Vol.    2,    chap. 

LXXI  (Macmillan,  N.  Y,  1910). 

CHAPTER  VI 
INITIATIVE  AND  REFERENDUM 

I.  Reasons  for  the  Adoption  of  the  Initiative  and  Referendum. 

Reinsert,  Paul  S.,  American  Legislatures  and  Legislative  Meth- 
ods, chaps.  VIII,  IX  (Century,  N.  Y.,  1913). 
Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 

Politics,   Rev.   ed.,  chaps.   XVIII,   XIX    (Scribners,   N.    Y., 

1917). 
Godkin,  E.  L.,  "Decline  of  Legislatures"  in  Atlantic,  Vol,  80, 

pp.  35-53. 
Holcombe,  A.  N.,  State  Government  in  the  United  States,  chap. 

X  (Macmillan,  N.  Y.,  1920). 
O'Neal,  Emmet,  "Distrust  of  State  Legislatures"  in  No.  Am., 

Vol.   199,  pp.  684-99. 
Orth,  S.  P.,  "Our  State  Legislatures"  in  Atlantic,  Vol.  94,  p1) 

728-39. 


278  POPULAR  GOVERNMENT 

II.  History  of  Direct  Popular  Action. 

Lobingier,  C.   S.,   The  People's  Law,  chaps.   I-XXVII    (Mac- 
millan,  N.  Y.,  1909). 

III.  Its  Actual  Operation  in  Other  Countries. 

Lobingier,   C.   S.,    The   People's  Law,   chaps.   XXIX-XXXIII, 

(Macmillan,  N.  Y.,  1909). 
Horwill,  H.  W.,  "Referendum  in  Great  Britain"  in  Pol.  Sri.  Q., 

Vol.  26,  pp.  415-31. 
Ogg,  F.  A.,  Governments    of    Europe,    Rev.  ed.,    pp.  583-597 

(Macmillan,  N.  Y.,   1920). 

Rappard,  W.  E.,  "Initiative,  Referendum  and  Recall  in  Switzer- 
land" in  Ann.  Am.  Acad.,  Vol.  43,  pp.  110-45. 
Ogg,  F.  A.,  Social  Progress  in  Contemporary  Europe,  pp.  200- 

12   (Macmillan,  N.  Y.,  1912). 
Wuarin,    Louis,    "Recent    Political    Experiments    in   the    Swiss 

Democracy"  in  Ann.  Am.  Acad.,  Vol.  6,  pp.  361-80. 
Commons,    John    R.,    "Direct    Legislation    in    Switzerland    and 

America"  in  Arena,  Vol.  22,  pp.  725-39. 
Hart,  A.  B.,  "Vox  Populi  in  Switzerland"  in  Nation,  Vol.  59, 

pp.  193-4. 

IV.  Its  Actual  Operation  in  the  United  States. 

Lobingier,  C.   S.,   The  People's  Law,  chaps.  XXVII,  XXVIII 

(Macmillan,  N.  Y.,  1909). 
Cleveland,   F.   A..    Organised    Democracy,    chaps.    XV,  XXI- 

XXV   (Longmans,  Green,  N.  Y.,  1913).  ^ 
Barnett,  J.  D.,  The  Operation  of  the  Initiative,  Referendum  and 

Recall  in  Oregon,  Part  I  (Macmillan,  N.  Y.,  1915). 
Beard,  C.  A.,  and  Shultz,  B.  E.,  Documents  on  the  State-Wide 

Initiative,  Referendum  and  Recall,  Parts  I,  III   (Macmillan, 

N.  Y.,  1912). 
Galbreath,  C.  B.,  Initiative  and  Referendum  (Heer,  Columbus, 

O.,  1912). 

Munro,  W.  B.,  The  Initiative,  Referendum  and  Recall  (Apple- 
ton,  N.  Y.,  1916). 
Oberholtzer,  E.   P.,   The  Referendum  in  America   (Scribners, 

N.  Y.,  1912). 
Taft,  W.  H.,  Popular  Government,  pp.  42-80  (Yale  Univ.  Press, 

New  Haven,  1913). 
Lowell,  A.  L.,  Public  Opinion  and  Popular  Government,  chaps. 

X-XV  (Longmans,  Green,  N.  Y.,  1913). 
Parsons,  Frank,  Direct  Legislation;  or  The  Veto  Power  in  the 

Hands  of  the  People  (C.  F.  Taylor,  Philadelphia,  1900). 
Bacon,  Edwin  Munroe,  and  Wyman,  Merrill,  Direct    Elections 

and  Law-Making  by  Popular  Vote  (Houghton,  Mifflin,  Boston, 

1912). 
Coker,    F.   W.,    "Interworkings   of    State    Administration    and 

Direct  Legislation"  in  Ann.  Am.  Acad.,  Vol.  64,  pp.  122-33. 
Dodd,  W.  F.,  "Some  Considerations  Upon  the  State-Wide  Initi- 
ative and  Referendum"  in  Ann.  Am.  Acad.,  Vol.  43,  pp.  203-15. 
Bourne,  J.,  Jr.,  "Functions  of  the  Initiative,   Referendum  and 

Recall"  in  Ann.  Am.  Acad.,  Vol.  43,  pp.  3-16. 
Kales,   A.   M.,   Unpopular   Government,  pp.    118-21    (Univ.   of 

Chicago  Press,  Chicago,  1914). 
Ford,  H.  J.,  "Initiative  and  the  Referendum  from  the  Standpoint 

of  Political  Science"  in  Harp.  W .,  Vol.  57,  p.  8. 


BIBLIOGRAPHY  279 

Guthrie,  G.  W.,  "Initiative,  Referendum  and  Recall"  in  Ann.  Am. 
Acad.,  Vol.  43,  pp.  17-31. 

Smith,  H.  L.,  "Direct  Legislation  in  California"  in  Nation,  Vol. 
93,  p.  543. 

Lowrie,  S.  G.,  "Initiative  and  Referendum:  California"  in  Am. 
Pol.  Sci.  R.,  Vol.  5,  pp.  434-7. 

Beard,  C.  A.,  American  Government  a)  d  Politics,  3rd  ed.,  pp. 
461-9  (Macmillan,  N.  Y.,  1920). 

Lowrie,  S.  G.,  "Initiative  and  Referendum"  in  Am.  Pol.  Sci.  R., 
Vol.  5,  pp.  590-2. 

Lowrie,  S.  G.,  "New  Forms  of  the  Initiative  and  Referendum" 
in  Am.  Pol.  Sci.  R.,  Vol.  5,  pp.  566-72. 

Fairlie,  J.  A.,  "Referendum  and  Initiative  in  Michigan"  in  Ann. 
Am.  Acad.,  Vol.  43,  pp.  146-58. 

Lowrie,  S.  G.,  "Wisconsin  Plan  for  the  Initiative  and  Referen- 
dum" in  Ann.  Am.  Acad.,  Vol.  43,  pp.  179-90. 

Gardner,  C.  O.,  "Working  of   the  State-Wide  Referendum  in 
Illinois"  in  Am.  Pol.  Sci.  R.,  Vol.  5,  pp.  394-417. 

Shippee,  L.  B.,  "Washington's  First  Experiment  in  Direct  Legis- 
lation" in  Pol.  Sci.  Q.,  Vol.  30,  pp.  235-53. 

Black,  J.  W.,  "Maine's  Experience  with  the  Initiative  and  Ref- 
erendum" in  Ann.  Am.  Acad.,  Vol.  43,  pp.  159-78. 

Haynes,  G.  H.,  "People's  Rule  in  Municipal  Affairs :  Election 
in  Portland,  Oregon"  in  Pol.  Sci.  Q.,  Vol.  26,  pp.  432-42. 

Haynes,  G.  H.,  "People's  Rule  on  Trial:  The  Oregon  Election, 
November  5,  1912,"  in  Pol.  Sci.  Q.,  Vol.  28,  pp.  18-33. 

Ray,  P.  O.,  An  introduction  to  Political  Parties  and  Practical 
Politics,  Rev.  ed.,  pp.  581-611  (Scribners,  N.  Y.,  1917). 

Jones,   C.  L.,  Readings  on  Parties  and  Elections,  pp.  335-351 
(Macmillan,  N.  Y.,  1916). 

Lowell,  A.   L.,   Public   Opinion  and  Popular   Government,   pp. 
252-253  (Longmans,  Green,  N.  Y.,  1913). 

Boyle,  James,  The  Initiative  and  Referendum:     Its  Folly,  Fal- 
lacies and  Failures  (A.  H.  Smythe,  Columbus,  O.,  1912). 

Oberholtzer,   E.   P.,    The  Referendum   in  America    (Scribners, 
N.  Y.,  1912). 

Cleveland,  F.  A.,  Organized  Democracy,  pp.  273-341  (Longmans, 
Green,  N.  Y.,  1913). 

Munro,  W.  B.,  The  Initiative,  Referendum  and  Recall  (Apple- 
ton,  N.  Y.,  1916). 

Barnett,  J.  D.,  The  Operation  of  the  Initiative,  Referendum  and 
Recall  in  Oregon  (Macmillan,  N.  Y.,  1915). 

Phelps,  E.  M.,  Selected  Articles  on  the  Initiative  and  Referen- 
dum, 3rd  ed.  (H.  W.  Wilson,  White  Plains,  N.  Y.,  1914). 

"The  Initiative,  Referendum  and  Recall/'  Ann.  Am.  Acad.,  Vol. 
43   (1912). 

V.  Arguments  Pro  and  Con  on  the  Initiative  and  Referendum. 

Wilcox,  D.  F.,  Government  by  All  the  People,  Parts  II,  III,  V 

(Macmillan,  N.  Y.,  1913). 
Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 

Politics,  Rev.  ed.,  chap.  XX  (Scribners,  N.  Y.,  1917). 
"Taking  the  Referendum  Seriously"  in  New  Republic,  Vol.  10, 

p.  92. 
Macdonell,  J.,  "Referendum  versus  Representative  Government" 

in  Liv.  Age,  Vol.  269,  pp.  289-93. 


280  POPULAR  GOVERNMENT 

McCall,  S.  W.,  ''Representative  as  Against  Direct  Government" 

in  Atlantic,  Vol.  108,  pp.  454-66. 
Pomeroy,   Eltweed,   "Democratic  vs.  Aristocratic   Government" 

in  Arena,  Vol.  28,  pp.  119-24. 
Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 

Politics,  Rev.  ed.,  pp.  570-581   (Scribners,  N.  Y.,  1917). 
Reinsch,  Paul  S.,  American  Legislatures  and  Legislative  Methods 

(Century,  New  York,  1913). 
Holcombe,  A.  N.,  State  Government  in  the  United  States,  pp. 

267-279  (Macmillan,  N.  Y.,  1920). 
Haines,  Lynn,    Your  Congress,  pp.    112-124    (National    Voters' 

League,  Washington,  D.  C,  1915). 
McCarthy,  C.,  "Remedies   for  Legislative  Conditions"  in  Proc. 

of  Amer.  Pol.  Sci.  Assoc.,  Vol.  6,  pp.  80-102. 
Stokes,  A.  P.,  Jr.,  "Pork  Barrel  Problem — a   Suggested  Solu- 
tion" in  Harp.  W.,  Vol.  57,  p.  9. 
Carter,  C.  R,  "First  Aid  for  Legislators"  in  R.  of  R.,  Vol.  49, 

pp.  587-90. 
Cushman,  R.   E.,  "Voters'  Leagues  and  Their  Work"  in  Nat. 

Mimic.  R.,  Vol.  4,  pp.  286-90. 
Dudgeon,  M.  S.,  "The  Wisconsin  Legislative  Library"  in  Yale 

R.,  Vol.  16,  pp.  288-95. 
Freund,  Ernst,  "The   Problem    of    Intelligent    Legislation"    in 

Proc.  of  Am.  Pol  Sci.  Assoc.,  Vol.  4,  pp.  69-79. 
Beard,  C.  A.,  American  Government  and  Politics,  3rd  ed.,  pp. 

540-546  (Macmillan,  N.  Y.,  1920). 

CHAPTER  VII 
CONSTITUTIONAL  RESTRAINTS  AND  JUDICIAL  REVIEW 

I.  Development  of  American  Constitutional  Law. 

Smith,  M.,  "Development  of  American  Constitutional  Law"  in 

Proc.  Acad.  Pol  Sci,  Vol.  3,  pp.  100-17. 
Gettell,  R.  G.,  Readings  in  Political  Science,  pp.  282-304  (Ginn, 

N.  Y.,  1911). 
Hamill,  C.  H.,  "Constitutional  Chaos"  in  Forum,  Vol.  48.  pp. 

45-60. 
Garner,   J.    W.,   Introduction    to   Political   Science,   chap.    XII 

(American  Book,  N.  Y.,  1910). 
McLaughlin,  A.  C.,   The  Courts,  the  Constitution  and  Parties, 

Chaps.  IV,  V  (Univ.  of  Chicago  Press,  Chicago,  1912). 

II.  Theory  of  Constitutional  Restraints. 

Lindsay,  S.  M.,  "Constitutional  Limitations  on  Government 
Powers"  in  Proc.  Acad.  Pol  Sci,  Vol.  5,  pp.  355-9. 

Goodnow,  F.  J.,  "The  Adaptation  of  a  Constitution  to  the  Needs 
of  a  People"  in  Proc.  Acad.  Pol.  Sci,  Vol.  5,  pp.  27-38. 

Dawson,  M.  M.,  "Discussion  of  Written  Constitutions  and  Social 
Conditions"  in  Proc.  Acad.  Pol  Sci,  Vol.  3,  pp.  121-3. 

Hamilton,  A.,  The  Federalist,  nos.  78-79  (Putnam,  N.  Y.,  1889). 

McKelway,  A.  J.,  "Social  Principles  of  the  New  State  Con- 
stitutions" in  Survey,  Vol.  25,  pp.  610-3. 

Howe,  F.  C.,  "The  Constitution  and  Public  Opinion"  in  Proc. 
Acad.  Pol  Sci,  Vol.  5,  pp.  7-19. 


BIBLIOGRAPHY  '281 

Freund,  E.,  "The  Problem  of  Adequate  Legislative  Powers  Un- 
der State  Constitutions"  in  Proc.  Acad.  Pol.  Sci.,  Vol.  5,  pp. 
98-126. 

Cleveland,  F.  A.,  Organised  Democracy,  chap.  XXIX  (Long- 
mans, Green,  N.  Y.,  1913). 

Emery,  L.  A.,  Concerning  Justice,  chaps.  VI,  IX  (Yale  Univ. 
Press,  New  Haven,  1914). 

III.  Judicial  Review. 

Cooley,  T.   M.,  A    Treatise  on   the   Constitutional  Limitations, 

7th  ed.,  chap.  VII  (Little,  Brown,  Boston,  1903). 
Emery,  L.  A.,  Concerning  Justice,  chaps.  VII,  VIII  (Yale  Univ. 

Press,  New  Haven,  1914). 
Beard,  C.  A.,  The  Supreme  Court  and  the  Constitution  (Mac- 

millan,  N.  Y.,  1912). 
Haines,  C.  G.,  The  American  Doctrine  of  Judicial  Supremacy 

(Macmillan,  N.  Y.,  1914). 
Corwin,  E.   S.,    The    Doctrine    of    Judicial    Review,    chap.    I 

(Princeton  Univ.   Press,  Princeton,  1914). 
McLaughlin,  A.   C.,  The  Courts,  the  Constitution  and  Parties, 

chap.  I  (Univ.  of  Chicago  Press,  Chicago,  1912). 

IV.  Creation  and  Amendment  of  Constitution. 

"The  Amending  of  Constitutions"  in  Nation,  Vol.  98,  pp.  518-9. 

Dodd,  W.  F.,  "Revision  and  Amendment  of  State  Constitutions." 
Review  in  Pol  Sci.  Q.,  Vol.  26,  pp.  729-31. 

Seager,  H.  R.,  "Discussion  of  the  Adaptation  of  Written  Con- 
stitutions to  Changing  Economic  and  Social  Conditions"  in 
Proc.  Acad.  Pol  Scl,  Vol.  3,  pp.  118-20. 

Garner,  J.  W.,  "Amendment  of  State  Constitutions"  in  Am.  Pol 
Sci.  R.,  Vol.  1,  pp.  213-47. 

Bates,  F.  G.,  "Constitutional  Amendments"  in  Am.  Pol  Sci.  R.f 
Vol.  8,  pp.  445-51. 

CHAPTER  VIII 
RECALL  OF  JUDICIAL  DECISIONS 

Roosevelt,  T.,  "The  Bar  Association  and  the  Popular  Review  of 

Judicial  Decisions"  in  Outlook,  Vol.  101,  pp.  1004-7. 
Hamill,  C.  H.,  "Constitutional  Chaos"  in  Forum,  Vol.  48,  pp. 

45-60. 
Richberg,   D.   R.,   "Constitutional   Growth   Through   Recall    of 

Decisions"  in  Ann.  Am.  Acad.,  Vol.  52,  pp.  25-36. 
Lewis,  W.  D.,  "New  Method  of  Constitutional  Amendment  by 

Popular  Vote"  in  Ann.  Am.  Acad.,  Vol.  43,  pp.  311-25. 
Roosevelt,  T.,  "People  and  the  Courts"  in  Outlook,  Vol.   101, 

pp.  855-7. 
Snow,  A.  H.,  "Position  of  the  Judiciary  in  the  United  States" 

in  Ann.  Am.  Acad.,  Vol.  43,  pp.  286-310. 

Frederick,  K.  T.,  "Significance  of  the  Recall  of  Judicial  De- 
cisions" in  Atlantic,  Vol.  110,  pp.  46-52. 
Dodd,  W.  F.,  "Social  Legislation  and  the  Courts"  in  Pol  Sci. 

Q.,  Vol.  28,  pp.  1-17. 
Dodd,  W.  F.,  "To  Amend  the  Federal  Judicial  Code"  in  Nation, 

Vol.  94,  pp.  409-10. 
Smith,  M.,  "Development  of  American  Constitutional  Law"  in 

Proc.  Acad.  Pol  Sci.,  Vol.  3,  pp.  100-17. 


282  POPULAR  GOVERNMENT 

Lewis,  W.   D.,  "New  Method  of  Dealing  with   Constitutional 

Questions"  in  Proc.  A  cad.  Pol.  Sci.,  Vol.  3,  pp.  85-95. 
Ashley,  C.  D.,  "Recall  of  Judicial  Decisions"  in  Proc.  Acad.  Pol. 

Sci.,  Vol.  3,  pp.  96-9. 
Beard,  C.  A.,  and  Shultz,  B.  E.,  Documents  on  the  State-Wide 

Initiative,  Referendum  and  Recall,  pp.  291-348   (Macmillan, 

N.  Y.,  1912). 
Smalley,  H.  S.,  "Nullifying  the  Law  by  Judicial  Interpretation" 

in  Atlantic,  Vol.  107,  pp,  452-64. 
Roosevelt,  T.,  "Charter  of  Democracy"  in  Outlook,  Vol.   100, 

pp.  390-402. 
Roosevelt,  T.,  "Right  of  the  People  to  Rule"  in  Outlook,  Vol. 

100,  pp.  618-26. 
Taft,  W.   H.,  Popular  Government,  pp.   174-185    (Yale  Univ. 

Press,  New  Haven,  1913), 

CHAPTER  IX 
THE  RECALL  OF  OFFICERS 
I.  The  Recall  in  General. 

Jones,  C.  L.,  Readings  on  Parties  and  Elections,  pp.  351-4  (Mac- 
millan, N.  Y.,  1916). 

Guthrie,  G.  W.,  "Initiative,  Referendum  and  Recall"  in  Ann. 
Am.  Acad.,  Vol.  43,  pp.  17-31. 

Kales,  A.  M.,  Unpopular  Government,  pp.  122-7  (Univ.  of  Chi- 
cago Press,  Chicago,  1914). 

Schaffner,  M.  A.,  "Initiative,  Referendum  and  Recall:  Recent 
Legislation  in  the  United  States"  in  Am.  Pol.  Sci.  R.,  Vol.  2, 
pp.  32-42. 

Wilcox,  D.  R,  Government  by  All  the  People,  pp.  167-227 
(Macmillan,  N.  Y.,  1912). 

Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 
Politics,  Rev.  ed.,  pp.  482-510  (Scribncrs,  N.  Y.,  1917). 

Beard,  C.  A.,  and  Shultz,  B.  E.,  Documents  on  the  State-Wide 
Initiative,  Referendum  and  Recall,  pp.  242-273  (Macmillan, 
N.  Y.,  1912). 

Cleveland,  F.  A.,  Organized  Democracy,  pp.  400-413;  431-435 
(Longmans,  Green,  N.  Y.,  1913). 

Phelps,  E.  M.,  Selected  Articles  on  the  Recall,  2d  ed.  (H.  W. 
Wilson,  White  Plains,  N.  Y.,  1915). 

Schaffner,  M.  A.,  The  Recall  (Wis.  Free  Library  Com.  Com- 
parative Legislative  Bulletin  No.  12,  1907). 

Woodburn,  J.  A.,  American  Politics,  Political  Parties  and  Party 
Problems  in  the  United  States,  2d  ed.,  pp.  449-456  (Putnam, 
N.  Y.,  1916). 

Barnett,  J.  D.,  The  Operation  of  tht  Initiative,  Referendum  and 
Recall  in  Oregon,*?.  191-218  (Maonillan,  N.  Y.,  1915). 

National  Municipal  Review,  Vol.  1,  pp.  204,  506,  659;  Vol.  5, 
p.  380. 

Hendrick,  B.  J.,  "The  Recall  in  Seattle"  in  McClure,  Vol.  37, 

pp.  647-63. 
II.  Recall  of  Political  Officers. 

"Recall  of  the  Seattle  Mayor"  in  Survey,  Vol.  25,  p.  879. 

Catlett,  F.  W.,  "Working  of  the  Recall  in  Seattle"  in  Ann.  Am. 
Acad.,  Vol.  43,  pp.  227-36. 


BIBLIOGRAPHY  283 

Beard,  C.  A.,  American  City  Government,  pp.  68-75  (Century, 
N.  Y.,  1912). 

Munro,  W.  B.,  Government  of  American  Cities,  3rd  ed.,  pp. 
321-57  (Macmillan,  N.  Y.,  1920). 

"Folly  of  the  Recall"  in  Outlook,  Vol.  98,  pp.  852-3. 

Barnett,  J.  D.,  "Operation  of  the  Recall  in  Oregon"  in  Am.  Pol 
Sci.  R.,  Vol.  6,  pp.  41-53. 

Gilbertson,  H.  S.,  "Popular  Control  Under  the  Recall"  in  Ann. 
Am.  Acad.,  Vol.  38,  pp.  833-8. 

Lowrie,  S.  G.,  "Recall  in  California"  in  Am.  Pol  Sci.  R.,  Vol. 
5,  pp.  248-9. 

Gilbertson,  H.  S.,  "Recall — its  Provisions  and  Significance"  in 
Ann.  Am.  Acad.,  Vol.  43,  pp.  216-26. 

Taylor,  C.  F.,  "Recent  Experience  with  the  Initiative,  Referen- 
dum and  Recall"  in  Proc.  Acad.  Pol.  Sci.,  Vol.  5,  pp,  89-97. 

Wilcox,  D.  F.,  Government  by  All  the  People,  pp.  177-211;  229- 
312  (Macmillan,  N.  Y.,  1912). 

Holt,  L.  H.,  Introduction  to  the  Study  of  Government,  pp.  149- 
151  (Macmillan,  N.  Y.,  1915). 

Reed,  T.  H.,  Government  for  the  People,  pp.  137-158  (Huebsch, 
N.  Y.,  1915). 

Beard,  C.  A.,  and  Shultz,  B.  E.,  Documents  on  the  State-Wide 
Initiative,  Referendum  and  Recall,  pp.  242-290  (Macmillan, 
N.  Y.,  1912). 

McCall,  S.  W.,  "Representative  as  Against  Direct  Government" 
in  Atlantic,  Vol.  108,  pp.  61-5. 

Butler,  N.  M.,  "Why  Should  We  Change  Our  Form  of  Govern- 
ment?" in  U.  S.  Senate  Doc.  238  (62d  Congress  2d  Sess.). 
III.  Recall  of  Judges. 

Roosevelt,  T.,  "Arizona  and  the  Recall  of  the  Judiciary"  in 
Outlook,  Vol.  98,  pp.  378-9. 

Metcalf,  J.  A.,  "Dangers  that  Lurk  in  the  Recall  of  the  Ju- 
diciary" in  Ann.  Am.  Acad.,  Vol.  43,  pp.  278-85. 

Brown,  R.  G.,  "Judicial  Recall — a  Fallacy  Repugnant  to  Con- 
stitutional Government"  in  Ann.  Am.  Acad.,  Vol.  43,  pp. 
239-77. 

"Recall  of  Judges  a  Rash  Experiment"  in  Century,  Vol.  82,  p. 
624-5. 

Maxey,  E.,  "Recall  of  the  Judges"  in  Forum,  Vol.  48,  pp.  294- 
308. 

"Delaying  Statehood;  the  Veto  for  Timid  Judges"  in  R.  of  R., 
Vol.  44,  pp.  264-6. 

"Statehood  Veto"  in  Outlook,  Vol.  98,  pp.  912-4. 

Nichols,  E.  R.,  Intercollegiate  Debates,  Vol.  2,  pp.  367-409 
(Hinds,  Noble  &  Eldridge,  N.  Y.,  1912). 

Roe,  G.  E.,  "Recall  of  Judges"  in  Proc.  Acad.  Pol.  Sci.9  Vol.  3, 

^  pp.  141-6. 

"Discussion  of  the  Selection  and  Removal  of  Judges"  in  Proc. 
Acad.  Pol  Sci.,  Vol.  3,  pp.  157-64. 

Dougherty,  J.  H.,  "Substitutes  for  the  Recall  of  Judges"  in 
Proc.  Acad.  Pol  Sci.,  Vol.  3,  pp.  147-56. 

Cleveland,  F.  A.,  Organized  Democracy,  pp.  431-434  (Long- 
mans, Green,  N.  Y.,  1913). 

Ransom,  Wm.  L.,  Majority  Rule  and  the  Judiciary  (Scribners, 


284  POPULAR  GOVERNMENT 

Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 

Politics,  Rev.  ed.,  pp.  376-386  (Scribners,  N.  Y.,  1917). 
Reed,  T.  H.,  Government  for  the  People,  pp.  171-176  (Huebsch, 

N.  Y.,  1915). 
Owen,  R.  L.,  "Election  and  Recall  of  Federal  Judges"  in  U.  S. 

Senate  Doc.,  No.  99  (62d  Congress,  1st  Sess.). 
Overton,  G.,  "Democracy  and  the  Recall"  in  Forum,  Vol.  47, 

pp.  157-68. 
Page,  E.  D.,  "Selection  and  Removal  of  Judges"  in  Proc.  Acad. 

Pol.  Sci.,  Vol.  3,  pp.  163-4. 

CHAPTER  X 
THE  SHORT  BALLOT  AND  POPULAR  GOVERNMENT 

I.  General  References. 

Childs,  R.  S.,  Short  Ballot  Principles  (Houghton,  Mifflin,  Bos- 
ton, 1911). 
Nichols,  E.  R.,  Intercollegiate  Debates,  Vol.  2,  pp.  319-60  (Hinds, 

Noble  &  Eldridge,  N.  Y.,  1912). 
Childs,  R.  S.,  "Ballot  Reform;  the  Need  of  Simplification"  in 

Proc.  Am.  Pol.  Sci.  Assoc.,  Vol.  6,  pp.  65-71. 
Beard,  C.  A.,  "Tendencies  Affecting  the  Size  of  the  Ballot"  in 

Proc.  Am.  Pol.  Sci.  Assoc.,  Vol.  6,  pp.  93-9. 
Ludington,  A.  C.,  "Proposed  Methods  of  Ballot  Simplification" 

in  Proc.  Am.  Pol.  Sci.  Assoc.,  Vol.  6,  pp.  72-92. 
Danner,  V.  E.,  "Making  Government  Efficient"  in  Forum,  Vol. 

51,  pp.  354-64. 
Garvin,  L.  F.  C.,  "Shortest  Ballot"  in  Independent,  Vol.  69,  pp. 

1152-5. 
Childs,  Richard  S.,  "The  Short  Enough  Ballot,"  in  Independent, 

Vol.  69,  p.  1316. 
Thompson,  B.  M.,  "Are  too  Many  Executive  Officers  Elective?" 

in  Mich.  Laiv  Rev.,  Vol.  6,  pp.  228-37. 
Wilson,  Woodrow,   "Hide-and-Seek   Politics"   in  No.   Am.   R.t 

Vol.  191,  pp.  585-601. 
Allen,  P.  L.,  "Multifarious  Australian  Ballot"  in  No.  Am.  R.t 

Vol.  191,  pp.  602-11. 
Haskell,   H.   J.,   "Ineffective   Voter"   in   Outlook,   Vol.   93,   p. 

996. 
Woodruff,    C.    R.,    "Complexity    of    American    Governmental 

Methods"  in  Pol.  Sci.  Q.,  Vol.  15,  pp.  260-72. 
Bullock,  E.   D.,  Short  Ballot   (H.  W.  Wilson,  White  Plains, 

N.  Y,  1915). 
Childs,  Richard  S.,  "Peanut  Politics  and  the  Short  Ballot"  in 

Harp.  W.9  VoL  58,  pp.  22-3. 

II.  Short  Ballot  in  State  Government. 

Harger,  C.  M.,  "State  Rule  by  Commission"  in  Independent, 
Vol.  74,  pp.  757-9. 

"Commission  Government  for  States"  in  Lit.  Diqest,  Vol.  46, 
pp.  934-5. 

"Commission  Government  for  States"  in  Outlook,  Vol.  103,  pp. 
742-3. 

Cleveland,  F.  A.,  "The  Short  Ballot  and  the  New  York  Con- 
stitution" in  R.  of  R.f  Vol.  52,  pp.  195-8. 


BIBLIOGRAPHY  285 

III.  County  Government  and  the  Short  Ballot. 

Cartwright,  O.  G.,  "Efficiency  in  County  Government"  in  Ann. 
Am.  Acad.,  Vol.  41,  pp.  193-203. 

Gilbertson,  H.  S.,  "Elements  of  the  County  Problem"  in  Ann. 
Am.  Acad.,  Vol.  47,  pp.  3-13. 

Bailey,  W.  L.,  "County  Community  and  its  Government"  in 
Ann.  Am.  Acad.,  Vol.  47,  pp.  14-25. 

Childs,  Richard  S.,  "Theoretically  Perfect  County"  in  Ann.  Am. 
Acad.,  Vol.  47,  pp.  274-8. 

Gilbertson,  H.  S.,  "Discovery  of  the  County  Problem"  in  R.  of 
R.,  Vol.  46,  pp.  604-8. 

Gilbertson,  H.  S.,  "Commission  Government  and  Paid  Man- 
agers for  Counties"  in  Survey,  Vol.  31,  p.  490. 

IV.  City  Government  and  the  Short  Ballot. 

Beard,  Charles  A.,    (ed.)    Loose  Leaf  Digest  of  Short  Ballot 

Charters,  No.  683   (Short  Ballot  Organization,  N.  Y.,  1912). 
Deming,  H.  E.,  Government  of  American  Cities  (Putnam,  N.  Y., 

1909). 
Bradford,  E.  S.,  "Adoption  of  the  City  Manager  Plan"  in  "Com" 

mission  Government  and  the  City-Manager  Plan"  2d  ed.,  p. 

871   (Amer.  Acad.  of  Pol.  and  Soc.  Sci.,  Phila.,  1914). 
Childs,  Richard  S.,  "Short  Ballot  and  the  Commission  Plan"  in 

Ann.  Am.  Acad.,  Vol.  38,  pp.  816-22. 

Crosby,  John,  "Municipal  Government  Administered  by  a  Gen- 
eral Manager"  in  Ann.  Am.  Acad.,  Vol.  38,  pp.  877-83. 
Silvernail,  F.  D.,  "The  Lockport  Proposal"  in  Ann.  Am.  Acad., 

Vol.  38,  pp.  884-7. 

Upson,  L.  D.,  "City  Manager  Charter  of  Dayton,"  in  "Commis- 
sion Government  and  the  City-Manager  Plan,"  2d  ed.,  pp. 

862-70  (Amer.  Acad.  of  Pol.  and  Soc.  Sci.  Phil.,  1914). 
"Boston  Adopts  the   Short   Ballot"   in   Outlook,   Vol.   93,   pp. 

608-10. 
Gilbertson,  H.  S.,  "Short  Ballot  in  American  Cities"  in  R.  of  R., 

Vol.  45,  pp.  82-5. 
V.  Election  Defects  and  Reforms. 

Ray,  P.  O.,  An  Introduction  to  Political  Parties  and  Practical 

Politics,  Rev.  ed.,  pp.  336-347  (Scribners,  N.  Y.,  1917). 
Jones,  C.   L.,  Readings  on  Parties  and  Elections,  pp.  224-232 

(Macmillan,  N.  Y.,  1916). 
Cleveland,  F.  A.,  Organized  Democracy,  pp.  265-272  (Longmans, 

Green,  N.  Y.,  1913). 
Ruppenthal,  J.  C.,  "Election  Reforms"  in  Ann.  Am.  Acad.,  Vol. 

28,  pp.  411-41. 
Beard,  C.  A.,  "The  Ballot's  Burden"  in  Pol  Sci.  Q.t  Vol.  24, 

pp.  589-614. 


INDEX  287 


INDEX 

AMENDING  CONSTITUTIONS — 

(See  Constitutions). 
AMERICANIZATION — 

public  opinion,  its  relation  to,  29. 
APPOINTMENT  OF  OFFICERS — 

Beard,  C.  A.,  on  legislative  appointment,  256. 

executive  appointment,  evils  of,  265-266. 

(See  Short  Ballot  and  Experts  in  Government). 
ARISTOTLE — 

representative  government,  45. 
BARNETT,  J.  D. — 

petition,  the  abuse  of,  in  Oregon,  213-216. 
BEARD,  C.  A. — 

courts,  political  functions  of,  207. 

legislative  appointment  of  public  officials,  256. 

recall  of  public  officers,  criticism  of,  204-205. 
BILL  DRAFTING — 

(See  Legislation). 
BONNETT  v.  VALLIER — 

discussed,  197-198. 
BOURNE,  J. — 

recall  of  public  officers,  224. 
BRACKETT,  E.  T.— 

nominating  convention  and  the  political  boss,  93. 

BRYCE,  JAMES — 

majority  tyranny,  149. 

political  bosses  and  public  opinion,  113. 
CANADA — 

democracy  in,  3. 
CARLYLE — 

public  opinion  and  questions  of  fact,  56. 
CARPET  BAG  RULE — 

democracy  under,  2. 
CARIBBEAN  COUNTRIES — 

democracy  in,  2. 
CHILDS,  R.  S.— 

long  ballot,  evils  of,  247-249. 
COKE,  JUDGE — 

attempted  recall  of,  228-229. 
CLEVELAND,  F.  A. — 

political  boss,  role  of,  71-72. 
COMMONS,  JOHN  R. — 

initiative  and  referendum  as  a  negative  rather  than  a  constructive 
remedy,  122. 


288  POPULAR  GOVERNMENT 

CONSTITUTION — 

Hamill,  C.  H.,  on  the  evils  of  specific  amendment,  195,  196-197. 
Lewis,  W.  D.,  on  the  advantages  of  specific  amendment,  193-194. 
specific  amendment,  method  of,  193-197. 
(See  Constitutional  Restraints). 

CONSTITUTIONAL  RESTRAINTS — 

majority  tyranny,  prevented  by,  158-163. 

public  opinion,  necessary  to,  19-20. 

purpose  of,  176. 

Root,  E.,  on  theory  of,  147,  148-149. 

theory  of,  142-149. 

(See  Due  Process  of  Law,  Individual  Rights,  Judicial  Review, 

and  the  Recall  of  Judicial  Decisions). 
COOLEY,  C.  H. — 

public  opinion  and  choice  of  leaders,  51,  54. 

public  opinion,  necessity  of  unity  to,  18-19. 

COURTS — 

Beard,  C.  A.,  on  political  functions  of,  207. 

functions  are  technical  rather  than  political,  208. 

political  functions  of,  207-208. 

Pound,  Dean,  on  the  importance  of  questions  of  fact  to  judicial 
functions,  191. 

Roosevelt,  T.,  criticism  of  courts,  198-199. 

(See  Judicial  Review  and  Constitutional  Restraints). 
DEMOCRACY — 

Canada  as  an  example  of,  3. 

Carpet  Bag  rule  in  south,  2. 

Caribbean  countries  as  examples  of,  2. 

devices  of  popular  control,  26. 

England  as  an  example  of,  3. 

Lowell,  A.  L.,  on  the  necessity  of  preparation  for,  25. 

nature  of,  1. 
DICKEY,  F.  W.— 

nominating  conventions,  abuses  of,  100,  101. 
DICKINSON,  G.  LOWES — 

majority  tyranny  and  popular  government,  157. 
DIRECT  DEMOCRACY — 

Giddings,  F.  H.,  on  the  relations  of  representative  government 
to,  62-63. 

movement  for,  45-47. 

(See  Representative  Government). 
DIRECT  PRIMARY — 

expense  of  nominations  under,  84-86. 

Ford,  H.  J.,  on  the  relation  of  the  political  boss  to,  92-93. 

Horack,  F.  E.,  on  its  operations  in  Iowa,  84. 

Merriam,  C.  E.,  on  the  expense  of  nominations  by,  85. 

open  primary,  party   responsibility  impossible  under,  74-75. 

political  boss,  dethronement  of,  91-93. 

Presidential  Preference  Primary  compared  to,  102-105. 

public  officers,  types  of,  as  affected  by,  83-87. 

public  opinion  as  expressed  by,  76-82,  83-87,  88-90. 

(See  Political  Parties  and  Presidential  Preference  Primaries). 
DUE  PROCESS  OF  LAW — 

application  dependent  upon  questions  of  fact,  190-192. 


INDEX  289 

Holmes,  O.  W.,  on  the  meaning  of  due  process  as  applied  to  the 
police  power,  176-178. 

interpreted  by  the  courts  or  the  people,  184-185. 

Lewis,  W.  D.,  on  the  judicial  construction  of,  191-192, 

majority  tyranny  as  prevented  by,  179-180. 

police  power  as  applied  to,  176-182. 

Roosevelt,  T.,  on  the  meaning  of,  176-177. 

(See  Constitutional  Restraints). 
EATON,  A.  H,— 

direct  primary  in  Oregon,  84. 
EDUCATION  OF  THE  ELECTORATE — 

public  opinion,  impossible  without  the,  39-42. 

recall  as  an  educational  influence,  238-240. 
ELECTORATE — 

Short  Ballot  and  its  effect  upon  the,  266-269. 

(See  Education). 
ENGLAND— 

democracy  in,  3. 
EXPERTS  IN  GOVERNMENT — 

executive  appointment  of,  256-258,  260. 

Lowell,  A.  L. 

methods  of  selecting,  259-260. 
need  of,  253-255. 

need  of,  45-47,  253-255. 

public  control  of,  257. 

selection  of,  255-256. 
FORD,  H.  J.— 

direct  primary  and  the  political  boss,  92-93. 

majority  tyranny  in  the  colonies,  154-156. 
FREEDOM  OF  SPEECH — 

(See  Individual  Rights). 
FREUND.,  ERNST — 

principle  of  legislation,  134. 
FUNCTIONS  OF  GOVERNMENT — 

classified,  48. 
GARDINER,  H.  E. — 

press  in  politics,  influence  of,  32. 
GIDDINGS,  F.  H. — 

direct  democracy  in  relation  to  representative  government,  62-63, 

GlLBERTSON,   H.    S. — 

recall  of  public  officers,  213. 
HADLEY,  A.  T.— 

leaders  in  the  nominating  convention,  influence  of,  115,  116. 

the  short  ballot,  necessity  of,  268-269. 

recall,  criticism  of,  221-223. 
HAMILL,  C.  H. — 

specific  amendment  of  the  Constitution,  evils  of,  195,  196-197. 
HOLMES,  O.  W.— 

due  process  as  applied  to  the  police  power,  meaning  of,  176-178, 
HORACK,  F.  E.— 

direct  primary  in  Iowa,  84. 

HORNBLOWER,   W.    B. — 

recall  of  officers  charged  with  illegal  conduct,  211. 


290  POPULAR  GOVERNMENT 

INDIVIDUAL  RIGHTS — 

danger  to,  146-147. 

freedom  of  speech, 

value  of,  150-153. 

public  opinion  requires,  20. 

(See  also  Majority  Tyranny  and  Constitutional  Restraints). 
INITIATIVE  AND  REFERENDUM — 

accurate  and  honest  formulation  of  public  policy  by,  123-131. 

Commons,  J.  R.,  on  the  initiative  and  referendum  as  a  negative 
force,  122. 

conservative  influence  of,   126-128. 

honest  legislation,  as  secured  by,   131-132. 

initiative  as  a  means  of   formulating  public  policy,  132-137. 

legal  provisions  for,  122,  123. 

popular  demand  for,  causes  of,  120-122. 

public  opinion  and,   127-128. 

war  with  Germany,  referendum  on,  129-131. 

(See  Legislation). 
IRRECONCILABLES — 

(See   Public  Opinion). 
JACOBS,  IN  RE — 

discussed,  188-190. 
JUDGES — 

Kales,  A.  M.,  on  popular  election  of,  263. 

selection  of,  261-264. 

(See  Experts  in  Government  and  Recall  of  Judges). 
JUDICIAL  REVIEW — 

constitutional  restraints  and,  163-169. 

objections  to,  169-170. 

(See  Constitutional   Restraints,  Due  Process  of  Law,  and  Ma- 
jority Tyranny). 
KALES,  A.  M. — 

judges,  popular  election  of,  263. 

long  ballot,  evils  of,  250. 
LEAGUE  OF  NATIONS — 

public  opinion  in  America  regarding,  8-12. 
LEE  SING,  IN  RE — 

discussed,  167-169. 
LEGISLATION — 

accurate  legislation  as  secured  by  iniative  and  referendum,  123-131. 

Freund,  Ernst,  on  principles  of,  134. 

honest  legislation  as  secured  by  initiative  and  referendum,  131-132. 

initiative  as  a  means  of  drafting,  132-137. 

Lowrie,  S.  Gale,  on  the  value  of  orderly  legislative  procedure, 
135-137. 

Parkinson,  T.  J.,  on    technical    nature    of    modern    legislation, 
124-125. 

Pound,  Dean,  on  technical  problems  involved  in  drafting,  133. 

present  needs  of 

accurate  and  honest  formulation  of  public  policy,  123-131. 
conformity  to  public  opinion,   138-141. 
principles  of,  133-134. 
scientific  bill  drafting,   137-138. 

public  opinion  and,  48-55,  138-141. 


INDEX  291 

recent  tendencies  in,  120,  121. 
sugar-coated,  141. 
technical  legislation, 

formulation  or  choice  of,  48-55. 
public  opinion  and,  124-128. 
LEGISLATIVE  PROCEDURE — 
(See  Legislation). 
LEWIS,  W.  D.— 

constitutional    interpretation    as    affected    by    questions    of    fact 

191-192. 

specific  amendment  of  constitutions,  advantages  of,  193-194. 
LOCHNER  v.  NEW  YORK — 

discussed,  185-188. 
LONG  BALLOT — 

Childs,  R.  S.,  on  the  evils  of,  247-249. 
evils  of,  247-252. 
Kales,  A.  M.,  on  the  evils  of,  250. 
(See  Short  Ballot). 
LOWELL,  A.  L. — 

experts  in  government, 

importance  of,  255. 
methods   of   selecting,  259-260. 
majority  tyranny,  156,  157-158. 
necessity  of  preparation  for  democracy,  25. 
public  opinion,  3,  4-5,  6,  7,  8,  11. 
public  opinion  and  questions  of  fact,  57. 
racial  strife  and  public  opinion,  16. 
short  ballot,  244-245. 
LOWRIE,  S.  GALE — 

legislative  procedure  in  legislation,  value  of,  135-137. 
MAJORITY  TYRANNY — 

Bryce,  James,  on,  149. 

constitutional  restraints,  the  theory  of,  and,  158-163. 
Dickinson,  G.   Lowes,  on  majority  tyranny  and  popular  govern- 
ment, 157. 

due  process  of  law  as  a  guarantee  against,  179-180. 
Ford,  P.  L.,  on  majority  tyranny  in  the  colonies,  154-156. 
Lowell,  A.  L.,  on,  156-157,  157-158. 
nature  of,  149-159. 

public  opinion  as  menaced  by,  156-159. 
racial  prejudice  and,   153-154. 
recall  of  judicial  decisions  and,  182-183. 
Taft,  W.  H.,  on,  170-171. 
(See  Constitutional  Restraints,  Judicial  Review,  and  the  Recall 

of  Judicial  Decisions). 
MANAHAN,  J. — 

recall  of  public  officers,  defense  of,  211-212. 

McCALL,   S.  W.— 

recall  of  public  officers,  criticism  of,  220-221. 
MERRIAM,  C.  E. — 

direct  primary,  expense  of  nominations  under,  85. 

MEXICO — 

popular  government  in,  1, 


292  POPULAR  GOVERNMENT 

MILL,  J.  S.— 

nationality  and  public  opinion,  16. 
MONROE  DOCTRINE — 

public  opinion  in  America  regarding,  8-11. 
NATIONALITY — 

Mill,  J.  S.,  on  the  relation  of  public  opinion  to,  16. 
public  opinion,  its  relation  to,  15-16. 
NOMINATING  CONVENTIONS — 

(See  Political  Parties,  Direct  Primary,  and  Presidential  Prefer- 
ence Primary). 
O'HARA,  BARRETT — 

press,  regulation  of,  33. 
PARKINSON,  T.  I. — 

legislation,  technical  nature  of  the  problems  of,  124-125. 
PARTY  LEADERSHIP — 

(See  Political  Parties). 
PARTY  RESPONSIBILITY — 

(See  Political  Parties). 
PETITION — 

abuse  of,  in  recall  of  public  officers,  214-216. 
Barnett,  J.  D.,  on  the  abuse  of,  in  Oregon,  213-216. 
direct  primary  candidates  selected  by,  77. 
recall  of  public  officers,  the  abuse  of  as  prevented  by,  213-214. 
special  interests  make  use  of,  234-236. 
POLICE  POWER — 

(See  Due  Process  of  Law). 
POLITICAL  PARTIES — 
political  boss, 

Bryce,  James,  on  relation  of  the  boss  to  public  opinion,  113. 
Cleveland,  F.  A.,  on  the  role  of,  71-72. 
direct  primary  and  its  effect  upon,  91-93. 
necessity  of,  72,  243-248. 
nominating  convention  and,  113,  114. 
presidential  preference  primary  and,  111-116. 
role  of,  69-71. 
evils  of,  72,  73. 
leadership,  party, 

Hadley,  A.  T.,  on  power  of  political  leaders  in  nomination 

conventions,   115-116. 
public  opinion  and  the  choice  of,  51-54. 
national  organization  of,  99-100. 
nominating  convention 

nominating  conventions,  abuses  of,  100-101. 
Brackett,  E.  T.,  on  the  relation  of  political  boss  to,  93. 
public  opinion  as  expressed  by,  78-82. 
party  caucus,  as  binding  on  the  representative,  59. 
party  responsibility, 

importance  of,  36,  38. 
impossible  under  the  open  primary,  74-75. 
necessity  for,  66-68. 
practical  operations  of,  242-244. 
regulation  of,  36-39. 
(See  Direct  Primary  and  Presidential  Preference  Primary). 


INDEX  293 

POUND,  DEAN — 

importance  of  questions  of  fact  in  relation  to  judicial  functions, 
191. 

legislation,  problems  involved  in,  133. 
PRESIDENT  OF  THE  UNITED  STATES — 

powers  of,  98-99. 
PRESIDENTIAL  PREFERENCE  PRIMARY — 

growth  of,  101. 

laws  classified,  101-102. 

political  boss  as  affected  by,  111-116. 

public  officers,  type  of  as  affected  by,  109-110. 

public  opinion  and,   105-106. 

public  opinion  as  expressed  by,  110-111. 

state  primary,  compared  with,   102-105. 

Williams,   Talcot,  on   analysis   of   the  primary  vote   for  Hiram 
Johnson  in  1920,  106. 

(See  Political  Parties  and  Direct  Primary), 
PRESS — 

(See  Public  Opinion). 
PUBLIC  ADMINISTRATION — 

recall  of  public  officers  and  its  effect  upon,  233-236. 

short  ballot  and  its  effect  upon,  263-266. 
PUBLICITY — 

professional  skill  in  the  development  of,  28. 

Wallas,  Graham,  on  professional  skill  in  the  creation  of,  28. 
PUBLIC  OFFICE — 

direct  primary  and  its  effect  upon  type  of  men  elected  to,  83-97. 

recall  and  its  effect  upon  type  of  men  attracted  to,  236. 
PUBLIC  OPINION — 

accuracy,  need  for,  29-30. 

Americanization  and,  29. 

authority  and,  6,  7,  12. 

basic  political  conviction,  necessary  to  the  existence  of,  16-19. 

Bryce,  James,  on  the  relation  of  the  political  boss  to,  113. 

Carlyle  on  determination  of  question  of  facts  by,  56. 

city  boss  and,  2. 

constitutional  restraints  in  relation  to,  19-20. 

determination  of  questions  of  fact  and,  55-57. 

direct  primary, 

as  expressing,  83-90. 
relation  to,  76-82. 

education  of  the  people  and,  39-42. 

elements  of,  4. 

enlargement  in  its  scope,  necessity  for,  29. 

factors  in,  30. 

freedom  of  speech  and,  20. 

homogeneous  population,  necessary  to  the  existence  of,  15,  16. 

initiative  and  referendum  and,   127-128. 

irreconcilables,  inimical  to,  15,  16,  18,  19,  28. 

leaders,  choice  of,  by,  51-54. 

legislation  and,  138-141. 

Monroe  Doctrine  and,  8-11. 

Lowell,  A.  L. 

nature  of,  3,  4,  8,  11. 


294  POPULAR  GOVERNMENT 

determination  of  questions  of  fact  by,  57. 

racial  prejudice  and,  16. 
majority  tyranny,  a  menace  to,  156-159. 
Mill,  J.   S.,  nationality  and  its  relation  to,  16. 
necessity  for,  27-29. 

nominating  convention  and,  75-76,  78-82. 
opinion,  must  be  real,  6-8. 
organization  of,  68-70. 
party  responsibility,  and,  59,  72-74. 
philosophy  and  its  relation  to,  7. 
political  boss  and  his  relation  to,  111-116. 
i  political  parties,  regulation  of,  and,  36-39. 
popular  conviction  and,  7,  8. 
popular  government,  is  based  upon,  1-3. 
popular  majorities,  as  distinguished   from,  4-5. 
presidential  preference  primary,  and,  105-111. 
press, 

Gardiner,  H.  E.,  on  the  influence  of,  in  politics,  32. 

improvement  and  regulation  of,  30-35. 

O'Hara,  B.,  on  the  regulation  of,  33. 

power  of  suggestion  and  the,  30-31. 
professional  skill  in  the  development  of,  28. 
public,  must  be,  3-6. 
public  policies  and,  58. 
reasoning  process,  the  effect  of,  upon,  12-15. 
recall  of  judges,  and,  14,  15. 
reliability  of,  20-21. 
self-determination  and,  4. 
suggestion,  the  role  of,  in  regard  to,  6,  7,  28. 
technical  legislation,  and,  124-128. 
technical  public  policies,  and,  48-55. 

Wallas,  Graham,  on  professional  skill  in  the  creation  of,  28. 
RACIAL  PREJUDICE — 

majority  tyranny  induced  by,  153-154. 
Lowell,  A.  L.,  on  the  relation  of  public  opinion  to,  16. 
RECALL  OF  JUDGES — 

Coke,  Judge,  attempted  recall  of,  228-229. 
majority  tyranny,  and,  208-209. 
public  opinion  in  America  regarding,  14-15. 
(See   Majority  Tyranny,   Constitutional   Restraints,  Judicial  Re- 
view, Petitions,  and  Recall  of  Judicial  Decisions). 
RECALL  OF  JUDICIAL  DECISIONS — 

majority  tyranny  and,  182-183. 
movement  for,  174. 
Root,  E.,  on,  183-184. 
specific  proposals  for,  174,  175. 

(See    Majority    Tyranny,    Due    Process   of    Law,    Constitutional 
Restraints,   Judicial    Review,    Constitutions,    Petitions   and    Re- 
call of  Judges). 
RECALL  OF  PUBLIC  OFFICERS — 

Beard,  C.  A.,  criticism  of,  204-205. 

Bourne,  J.,  on,  224. 

charges  to  be  determined  by  the  recall  election,  205-206. 

classes  of  officers  to  which  the  recall  may  be  applied,  206-207. 


INDEX  295 

corrupt  or  illegal  conduct,  when  charged  with,  209-217. 

educational  value,  238-240. 

Gilbertson,  H.  S.,  213. 

Hadley,  A.  T.,  criticism  of,  221-223. 

Hornblower,  W.  B.,  criticism  of  recall  of  officers  for  illegal  con- 
duct, 211. 
improvement  of  official  conduct  through  the,  233-236. 

inefficiency,  when  charged  with,  223-233. 

Manahan,  J.,  defense  of,  211-212. 

McCall,  S.  W.,  criticism  of,  220-221. 

misrepresentation,  when  charged  with,  217-223. 

nature  of  the  proposals  for,  203-204. 

reason  for  the  movement  for,  203. 

"snap"  judgment  preferred  to  mature  opinion  by  the,  220-233. 

Tawney,  J.  A.,  criticism  by,  217. 

type  of  men  as  affected  by,  236. 

(See  Recall  of  Judges,  Experts  in  Government,  and  Petitions). 
REFERENDUM — 

(See  Initiative  and  Referendum). 
REMOVAL  OF  PUBLIC  OFFICERS — 

methods  of,  236-238. 

(See  Recall  of  Public  Officers  and  Short  Ballot). 
REPRESENTATIVE  GOVERNMENT — 

Aristotle,  on,  45. 

Giddings,  F.  H.,  on  the  relation  of  direct  democracy  to,  62-63. 

representative, 

duty  of,  59-60. 
instruction  of,  60-61. 
party  caucus,  bound  by,  59. 

Stewardson,  L.  C.,  on  the  evils  of,  121-122. 
ROOSEVELT,  T. — 

courts,  criticism  of,  198-199. 

due  process  of  law,  meaning  of,  176-177. 
ROOT,  E. — 

constitutional  restraints,  theory  of,  147,  148,  149. 

recall  of  judicial  decisions,  183-184. 
Ross,  E.  A.— 

divided  responsibility,  evils  of,  251. 

SELF-DETERMINATION — 

public  opinion  and,  4. 
SHORT  BALLOT — 

electorate  as  affected  by,  266-269. 

Hadley,  A.  T.,  on  the  necessity  of,  268-269. 

Lowell,  A.  L.,  on,  244-245. 

public  administration  as  affected  by,  263-266. 

successful  in  the  federal  government,  251-252. 

theory  of,  252-253. 

(See  Appointment  of  Officers,  Removal  of  Officers,  Experts  in 

Government  and  Long  Ballot). 
SPECIAL  INTERESTS — 

recall  used  by,  234-236. 
STEWARDSON,  L.  C. — 

representative  government,  evils  of,  121-122. 


296  POPULAR  GOVERNMENT 

SUGGESTION,  THE  POWER  OF — 

(See  Public  Opinion). 
TAFT,  W.  H.— 

majority  tyranny,  170-171. 
TAWNEY,  J.  A. — 

recall  of  public  officers,  criticism  of,  217. 
WALLAS,  GRAHAM — 

professional  skill  in  creating  public  opinion,  28. 
WAR— 

referendum  on  declaration  of,  129-131. 
WILLIAMS,  TALCOT — 

analysis  of  the  vote  for  Johnson  in  1920,  106. 


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